r  r 


STUDIES  IN  HISTORY 
ECONOMICS  AND 
PUBLIC  LAW 


EDITED  BY 

THE  FACULTY  OF  POLITICAL  SCIENCE 
OF  COLUMBIA  UNIVERSITY 


VOLUME  ONE  HUNDRED  AND  SEVEN 


Work 

COLUMBIA  UNIVERSITY 

LONGMANS,  GREEN  &  CO.,  AGENTS 
London:  P.  S.  King  &  Son,  Ltd. 

1923 


CONTENTS 


PAGE 

1.  Two  Portuguese  Communities  in  New  England — Donald 

R.  Taft,  Ph.D .  i 

2.  English  Penitential  Discipline  and  Anglo-Saxon  Law  in 

their  Joint  Influence — Thomas  Pollock  Oakley,  Ph.D.  359 


2 

ENGLISH  PENITENTIAL  DISCIPLINE  AND  ANGLO-SAXON 
LAW  IN  THEIR  JOINT  INFLUENCE 


STUDIES  IN  HISTORY,  ECONOMICS  AND  PUBLIC  LAW 


EDITED  BY  THE  FACULTY  OF  POLITICAL  SCIENCE 
OF  COLUMBIA  UNIVERSITY 


Volume  CVII]  [Number  2 

Whole  Number  242 


ENGLISH  PENITENTIAL  DISCIPLINE 
AND  ANGLO-SAXON  LAW 
IN  THEIR  JOINT  INFLUENCE 


BY 


THOMAS  POLLOCK  OAKLEY,  Ph.D. 


Sometime  Fellow  in  History  in  Columbia,  University 
Professor  of  History  in  Hardin  College 


Uorli 

COLUMBIA  UNIVERSITY 


SALE  AGENTS 

New  York  :  Longmans,  Green  &  Co. 
London:  P.  S.  King  &  Son,  Ltd. 


1923 


Copyright,  1923 

BY 


THOMAS  P.  OAKLEY 


PREFACE 


Several  years  ago,  Professor  James  T.  Shotwell,  of 
Columbia  University,  suggested  to  the  present  writer  the 
rich  possibilities  for  research  still  remaining  insufficiently  de¬ 
veloped  in  the  Penitentials.  Later  studies  in  the  Anglo- 
Saxon  Laws  and  on  the  penitential  system  have  led  to  the 
present  work.  Before  undertaking  the  constructive  inter¬ 
pretation  and  use  of  evidence  from  the  Penitentials,  how¬ 
ever,  it  has  been  found  necessary  to  include  chapters  which 
will  serve  to  clarify  the  textual  difficulties  and  relationships 
of  these  sources.  The  work  originally  included  materials 
on  additional  phases  of  penitential  influence.  But  limits  of 
space  have  eliminated  this  material  which  the  author  hopes 
to  publish  elsewhere. 

He  feels  deeply  indebted  to  Professor  James  T.  Shotwell, 
a  most  kind  friend  and  inspirer  for  many  years,  who  first 
gave  the  present  writer  a  vision  of  the  religion  of  humanity 
and  of  truth  in  the  callings  of  historical  teacher  and  scholar. 
His  helpful  suggestions  have  greatly  improved  the  general 
plan  of  the  book.  To  Professor  William  W.  Rockwell,  of 
Union  Theological  Seminary,  who  has  been  chiefly  in  charge 
of  this  dissertation,  the  author  owes  many  valuable  sugges¬ 
tions.  Professor  Munroe  Smith,  of  Columbia  University, 
has  read  the  portions  on  the  Anglo-Saxon  Laws,  on  which 
he  has  checked  technical  details.  Miss  Ruth  Royd,  sometime 
Professor  of  English  in  Hardin  College,  and  Professor  Austin 
P.  Evans,  of  Columbia  University,  have  read  the  manuscript 
and  suggested  helpful  improvements  in  its  style.  The  writer 
appreciates  also  the  courteous  and  efficient  assistance  in 
363]  5 


6 


PREFACE 


[364 

obtaining  books  that  has  been  rendered  by  Miss  Margaret 
Erb,  and  the  Messrs.  Frank  and  Frederick  Erb,  of  Columbia 
University  Library;  by  Doctors  William  W.  Rockwell  and 
Henry  P.  Smith,  of  Union  Theological  Seminary;  by  the 
librarians  at  Harvard  University,  the  Library  of  Congress 
and  the  University  of  Chicago;  and  by  the  Edward  Thomp¬ 
son  Company,  of  Northport,  New  York.  To  Mrs.  Oakley 
lie  is  indebted  for  many  months  of  devoted  assistance. 

Above  all,  he  owes  most  to  the  unfailing  devotion  and  en¬ 
couragement  given  him  by  Jeannette  Oakley,  Adelaide  F. 
Oakley  and  Elizabeth  C.  Oakley,  his  wife,  mother  and  sister, 
respectively,  to  whom  this  book  is  dedicated. 

T.  P.  O. 

Hardin  College,  Mexico,  Missouri,  March,  1923. 


TABLE  OF  CONTENTS 


CHAPTER  I 

Historical  and  Critical  Introduction 

PAGE 

Sect.  i.  The  General  Importance  of  the  Penitentials .  13 

Sect.  2.  Editions  and  Critical  Works  on  the  Penitentials .  15 

Sect.  3.  Phases  of  Penitential  Influence  .  19 

Sect.  4.  Problems,  Difficulties  and  Controversies . 21 

Sect.  5.  The  Sources  for  the  Medieval  Penitentials  of  the  West.  .  22 

The  Canonical  Letters  . 22 

The  Dionysian  Collection.  26 

Sect.  6.  The  Chief  Continental  Penitentials,  Originating  after  the 

Early  Greek  Penitentials .  ...  27 

The  Celtic  Penitentials  as  models  .  .  .  27 

Penitentials  by  Columban  29 

The  spurious  “  Excarpsus  Cummeani”.  .  .  29 

Thn  genuine  Penitential  of  Cummean  ....  30 
The  so-called  “  Roman  Penitential,”  Frankish  30 
Those  by  Halitgar  and  by  Rhabanus  Maurus  .  31 

The  Penitential  of  pseudo-Theodore,  Frankish  .  31 

Sect.  7.  The  Welsh  and  Early  British  penitential  canons .  33 

Welsh  penitential  canons .  33 

Sect.  8.  Irish  Penitentials  and  Penitential  Canons .  37 

CHAPTER  II 

The  General  Operation  of  Penance 

Introductory  42 

Sect.  1.  The  General  Nature  and  Kinds  of  Penance.  ....  43 

Sect.  2.  The  Importance  and  Character  of  Public  Penance  ....  43 

Sect.  3.  Private  Penitential  Acts.  50 

Sect.  4.  Commutations  and  Substitutions  . .  52 

Sect.  5.  The  Penances  of  Clerics  .  56 

Sect.  6.  The  Directing  of  Penance  and  of  Confession .  59 

Sect.  7.  Reconciliation . 62 

365] 


7 


8 


TABLE  OF  CONTENTS 


[366 

PAGE 

CHAPTER  III 


The  Operation  of  Penance  in  Pre-Norman  Times 

Sect.  1.  Introductory .  ....  64 

Sect.  2.  Forms  of  Penance .  66 

Controversy  over  public  penance .  66 

Sect.  3.  Confession  and  Penance  in  the  Irish  Church .  67 

Public  penance  absent  there  .  67 

Confession .  68 

Sect.  4.  Irish  Commutations  and  the  Like .  6g 

Provisions  in  the  Penitential  of  Vinnian  ....  69 

In  the  “  Canones  Hibernenses  ” .  69 

Conclusions .  72 

Sect.  5.  Confession  and  Penance  Among  the  Welsh .  72 

Sect.  6.  In  the  British  Church  Before  Theodore  .  73 

Traditional  denial  of  the  existence  of  public  penance.  74 
Supported  by  the  evidence  of  the  Penitentials  also.  75 
Sect.  7.  Penance  and  Confession  During  the  Time  of  Theodore.  .  75 

Evidence  that  he  may  have  introduced  public  pen¬ 
ance  .  75 

But,  if  so,  only  to  a  very  limited  extent .  77 

Private  confession  and  penance  in  general  ....  77 

Sect.  8.  Confession  and  Penance  after  Theodore  . 78 

Mentioned  in  the  Dialogue  of  Egbert .  79 

Described  in  his  Pontifical. .  79 

Mentioned  in  the  Frankish  pseudo-Bede  II.  .  .  .  82 

By  the  pseudo  Egbert  ...  .  .  82 

And  by  later  Frankish  borrowings  .  82 

Conclusions .  84 

Sins  which  were  left  to  private  penance  .  ...  85 

And  to  public  penance .  85 

The  latter  imposed  by  the  bishop .  87 

Forms  of  private  penance .  ....  87 

Sect.  9.  Commutations  in  the  English  Penitentials . 88 

That  of  Theodore  severe.  .  .  .  88 

That  of  Egbert  slightly  more  lenient.  .  ...  89 

That  of  Bede  gave  limited  encouragement  ...  91 

The  pseudo-Bede  very  lax  92 

Similar  laxness  in  the  pseudo-Egberts .  92 

And  especially  in  the  exceptional,  spurious  Cap¬ 
ones  Eadgari ,  which  are  often  cited .  95 

Conclusions .  97 


367]  TABLE  OF  CONTENTS  g 

PAGE 

Forms  of  commutations  and  the  like  used  .  .  .  g8 

The  use  of  fines  regulated  by  secular  law  ...  .101 

Further  conclusions . 101 

Customary  accounts  much  exaggerated . 101 

Actual  corruption  and  decline  more  limited.  .  .  102 

CHAPTER  IV 

The  Literary  History  of  the  English  Penitentials 

Introductory . 104 

Extensive  use  and  importance . 104 

List  of  genuine  and  spurious  compilations . 104 

Editions  ...•■• .  .  .  .  ...  105 

Sect.  1.  The  Penitential  of  Theodore  and  Its  Cycle . 105 

The  Penitential  of  Theodore  ....  ....  105 

Its  cycle  ...  105 

Caution  necessary  in  using  it . 108 

Its  most  important  sources  . .  109 

Powerful  influence  of  early  British  and  Irish  peniten¬ 
tials  .  .  ...  no 

Especially  of  the  “  Libellus  Scottorum  ” . 112 

Extensive  use  of  the  Penitential  of  Theodore.  ...  114 

Textual  influence .  .  .  .  .  116 

Sect.  2.  The  Penitential  of  Bede . 117 

Distinct  from  the  “ Liber  de  Remediis  Peccatorum  ”  .  117 

Editions  and  manuscripts . 117 

Controversy  over  date  and  authorship  .  .  .  .  118 

Sources  .  120 

Sect.  3.  The  Penitential  of  Egbert  .  . • . 121 

To  be  distinguished  from  spurious  works . 121 

The  Penitential  generally  accepted  as  Egbert’s  ...  121 

Though  denied  by  Schmitz . 123 

Its  contents.  . 123 

Later,  spurious  additions  important . 123 

Sources.  ....  . 124 

The  penitential  influential  . 124 

Sect.  4.  The  pseudo- Bede  of  Albers,  Pseudo-Bede  1  .  ...  125 

Two  separate  penitentials  to  be  distinguished  .  .  •  .  125 

Penitential  II,  of  Wasserschleben  and  Schmitz,  Frank¬ 
ish  .  125 

Penitential  I,  of  Albers,  independent . 125 

The  model  for  Penitential  II .  125 

Penitential  I  probably  of  English  origin . 125 

Evidence  for  considering  it  independent . 126 


I0  TABLE  OF  CONTENTS  [368 

PAGE 

Sect.  5.  Pseudo-Bede  II  or  Penitential  II . 129 

Controversy  over  its  authorship .  129 

Its  textual  influence . .  .  .  131 

Sect.  6.  The  Confessional  of  pseudo-Egbert . 131 

Probably  translated  into  Anglo-Saxon  from  a  Frank¬ 
ish  original .  •  •  •  I32 

Its  influence  ....  133 

Sect.  7.  The  Penitential  of  pseudo-Egbert .  133 

Editions,  contents,  sources .  •  133 

Influence .  134 


Sect.  8.  The  pseudonymous  “  Canones  Eadgari  ”  ....  •  •  •  135 

CHAPTER  V 

The  Cooperation  of  the  Anglo-Saxon  Laws  with 


THE  PENITENTIALS 

Sect.  1.  General  Introduction . 136 

Sect.  2.  Religion  and  Law  Among  Primitive  Germanic  Peoples  .  137 
Sect.  3.  The  Intermingling  of  Secular  and  Ecclesiastical  Jurisdic¬ 
tions  .  138 

Sect.  4.  Secular  Requirement  of  Ecclesiastical  Penalties  ...  141 

Among  the  Anglo-Saxons . 141 

Disabilities  other  than  penance  in  the  Laws  ...  146 

Summary .  ...  148 

Sect.  5.  The  Operation  of  the  Anglo-Saxon  Laws  .  149 

The  method  of  self-help  or  kin-help . 150 

Weakness  of  the  executive  power .  .  .  150 

Power  of  the  kindred  brought  great  abuses  .  .  15 1 

Injurious  influence  of  the  blood-feud  • .  151 

Defective  system  of  penalties .  .  .  152 

Courts  and  jurisdictions . 154 

Legal  procedure  and  its  defects .  .  155 

Religious  safeguards  to  prevent  perjury  ......  157 

Great  prevalence  of  the  latter .  158 

Ordeals  and  their  inefficacy  .  159 

Sect.  6.  Enforcement  of  the  Anglo-Saxon  Laws . 161 

Favored  the  powerful  kindreds.  . 162 

And  the  prevalence  of  blood-feuds  .  ....  162 

In  spite  of  the  growth  of  the  king’s  peace . 165 

Sect.  7.  Summary  of  the  Weaknesses  of  the  Anglo-Saxon  Laws  166 


TABLE  OF  CONTENTS 


369] 


1 1 


CHAPTER  VI 


Provisions  in  the  Penitentials  Reinforcing 
the  Secular  Laws 

Sect.  1.  The  Ruling  of  the  Penitentials  as  Regards  Feud . 167 

Friedberg’s  views . 167 

Opposed  by  more  general  practice .  168 

The  penitential  usage  in  advance  of  the  secular  .  .  .  169 

And  penalised  disobedience  to  the  latter . 169 

Sect.  2.  Penitential  Requirement  of  the  Payment  of  Money  Com¬ 
positions  .  169 

In  the  Penitential  of  Theodore  and  its  cycle  ...  .  169 

In  that  of  Vinnian .  170 

In  the  Confessional  of  pseudo-Egbert  .  .  .  .  .  171 

Applied  both  to  secret  and  to  publicly  known  sins  172 

Greatly  strengthened  secular  enforcement  ...  .  172 

Penitential  requirement  of  restitution . 172 

Sect.  3.  Penances  for  Perjury  in  the  Penitentials . 174 

Their  great  significance .  .  .  174 

Degrees  of  severity . 174 

Penances  in  the  Penitential  of  Theodore  ...  .  175 

In  that  of  Bede  .  .  .  .  175 

In  that  of  Egbert . 176 

In  the  pseudo-Egberts .  177 

In  the  Theodore-cycle . 178 

In  the  pseudo-Bedes . 180 

Kinds  of  perjury  in  the  Penitentials . 186 

Effect  of  distinguishing  the  degrees . 187 

Summary . 189 

Degrees  according  to  motive .  .  .  189 

Perjury  under  compulsion  .  .  .  .  , . 190 

Through  greed  . 191 

Suborning  of  perjury .  191 

Wilful  perjury  after  suspicion . 192 

Perjury  in  peril  of  life .  192 

Distinction  between  perjury  and  false  witness  ....  192 
Sect.  4.  How  Penance  Aided  the  Secular  Laws  Through  Additional 

Penalties .  .  ■  193 

Conclusion . 19  7 

Abbreviations . 201 

Bibliography . 204 

Index .  2I5 


CHAPTER  I 


Historical  and  Critical  Introduction 

SECT.  I.  THE  GENERAL  IMPORTANCE  OF  THE  PENITENTIALS 

The  decline  of  the  Roman  Empire  brought  with  it  a  dis¬ 
turbance  of  the  social  system  of  Western  Europe.  The 
barbarians  who  overran  the  countries  where  Roman  citizen¬ 
ship  had  been  slowly  extending  and  where  Roman  law  had 
been,  however  tentatively,  applied,  lived  under  very  differ¬ 
ent  and  far  more  primitive  customs  and  laws.  The  resulting 
confusion  was  still  further  increased  by  the  principles  and 
practice  of  social  discrimination  in  both  systems,  by  the  re¬ 
cognition  of  feud  and  private  vengeance  in  Germanic  law, 
and  by  the  lack  of  organized  authority  for  enforcing  court 
decisions.1 

In  this  period  of  confusion,  the  Church  assumed  many 
of  the  attributes  of  a  state;  bishops,  with  their  episcopal 
jurisdictions,  preserved  the  outlines  of  the  ancient  civitates, 
and  monastic  missions  tamed  the  more  savage  instincts  of 
the  invaders.  In  short,  civilization  then  began  to  recover 
lost  ground  again  largely  through  the  instrumentality  of  the 
Church. 

In  the  history  of  this  work  of  social  development  there  is 
a  phase  that  has  not  yet  received  adequate  attention  2  nor  the 
recognition  due  to  its  importance — a  chapter  in  the  influence 
of  the  Church,  operating  largely  through  the  media  of  pen- 

1  For  details,  vide  infra,  chap.  v. 

*  For  a  summary  of  some  ways  in  which  modern  writers  have  incor¬ 
rectly  used  materials  from  the  Penitentials,  vide  infra,  the  “  General 
Bibliography  ”  at  the  end  of  this  work.  For  individual  instances,  infra, 
under  individual  penitentials  and  under  the  treatment  of  specific 
offences. 

37i] 


13 


ENGLISH  PENITENTIAL  DISCIPLINE 


14 


[372 


ance  and  the  Penitentials.  The  latter  were  manuals  for  the 
use  of  priests,  and  contained  detailed  lists  of  penances  pre¬ 
scribed  for  various  sins.  They  were  constantly  used  1  by 
priests  and  bishops  in  imposing  penances  for  various  kinds 
of  immorality,  paganism,  heresy,  insubordination  to  eccle¬ 
siastical  authority  and  for  a  whole  detailed  category  of  sins. 

The  very  great  practical  importance  of  the  Penitentials 
for  ecclesiastical  discipline  in  the  Middle  Ages  is  evidenced 
by  the  fact  that  the  ecclesiastical  and  secular  laws  2  fre¬ 
quently  required  that  priests  use  and  be  able  to  understand 
such  codes.  Numerous  provisions  for  such  requirement 
are  found,  for  the  Continent,  in  the  capitularies  of  the  Caro- 
lingian  monarchs  and  in  the  decrees  of  councils  and  the 
instructions  issued  by  powerful  prelates.  While,  for  pre- 
Norman  England,  the  required  possession  and  use  of  a 
penitential  by  a  priest  is  implied  or  definitely  demanded  in 
several  sources 3  f  or  that  period,  both  secular  and  eccle¬ 
siastical. 


1  The  Penitentials  were  usually  in  Latin  and  bore  various  names : 
“Libri  Poenitentiales,”  “Indicia  de  poenitentia ”  “  Libri  de  remediis 
peccatorum,”  and  the  like;  see  examples  of  titles  oi  individual  peniten¬ 
tials  infra,  especially  chaps,  i  and  iv. 

*  For  the  requirement  by  the  Carolingian  capitularies  of  A.  D.  802  or 
803  and  that  of  809:  Binterim,  Geschichte  .  .  .  Concilien  (7  vols.  in  16, 
Mainz,  1835-1848),  II,  449-450;  an  article  by  Vering,  in  AKKR.  (1873), 
especially  p.  217;  Alzog,  Handbucli  dcr  universal  Kirchengeschichte 
(8th  ed.,  Mainz,  1866,  2  vols.,  translated  into  English  by  F.  J.  Pabisch 
and  T.  S.  Byrne,  in  3  vols.,  Cincinnati,  1903),  II,  165. 

For  similar  requirement  by  the  third  Council  of  Tours  and  other 
councils  and  by  Regino  of  Priim,  Burchard  of  Worms,  and  other  prel¬ 
ates :  Schmitz,  H.  J.,  Die  Bussbiicher  und  die  Bussdisciplin  der  Kirche 
(Mainz,  1883,  cited  hereafter  as  “  Schmitz  I  ”),  p.  1 ;  Wasserschleben, 
F.  W.  FI.,  Die  Bussordnungen  dcr  abcndlandischen  Kirche  (Halle,  1851, 
cited  hereafter  as  “Wasserschleben”),  “Vorrede.” 

There  was  no  officially  established  penitential  as  standard.  Vide 
Vering,  in  loc.  cit .,  p.  216,  n.  3,  and  Stubbs,  in  Select  Essays  in  Anglo- 
American  Legal  History  (Boston,  3  vols.,  1907-1909),  I,  253. 

3  P.  Egb.,  Prol.:  “Nunc  ergo,  o  fratres,  qui  voluerit  sacerdotalem 


15 


373]  HISTORICAL  and  critical  introduction 

The  penitential  codes  were  widely  distributed  1  during  the 
Middle  Ages  and  exercised  a  powerful  influence  on  numer¬ 
ous  phases  of  medieval  institutions.  Moreover,  this  in¬ 
fluence,  with  that  of  other  penitential  measures,  was  far 
greater  than  is  the  case  today.  In  particular  its  authority 
was  considerably  increased  by  the  passage  of  numerous 
secular  laws  requiring  penance  for  crimes,  sins,  and  other 
offences  against  either  Church  or  State.  Then,  too,  be¬ 
cause  of  the  intermingling  of  secular  and  ecclesiastical  juris¬ 
dictions,  there  was  imparted  to  penitential  influence  a  public 
or  semi-public  nature  and  power  now  absent.  These  factors 
are  each  so  important  that  they  will  be  treated  separately  in 
following  portions  of  the  work. 

SECT.  2.  EDITIONS  AND  CRITICAL  WORKS  ON  THE 
PEN  ITEN  TI ALS 

The  great  importance  of  the  penitential  canons  and  man¬ 
uals  of  penance  has  often  been  recognized  by  various  editions 
of  penitentials;  by  critical  research  and  monographs  on 
textual  questions  connected  with  them ;  and  by  the  frequent 
and  extensive  use  of  material  from  penitentials  and  peniten¬ 
tial  canons  by  writers  on  many  aspects  of  medieval  institu¬ 
tions.  But  no  detailed,  concrete  work  has  been  written  on 
the  collective  moral  influence  of  the  Penitentials  nor  has 
sufficient  attention  been  given  to  their  social  influence  in 

auctoritatem  accipere,  imprimitus  pro  deum  cogitet  et  preparet  arma 
ejus,  antequam  manus  episcopi  tangat  caput,  id  est  (then  follows  list  of 
books),  .  .  .  post  autem  suum  penitentialem.”  Vide  Schmitz,  II,  662. 
Cf.  Canons  of  Aelfric  (nth  century),  can.  xxi,  in  Thorpe,  B.,  Ancient 
Laws  and  Institutes  of  England  (1  vol.,  fol.  ed.,  London,  1840,  Record 
Commission) ,  p.  444;  also  Aelfric,  Pastoral  Epistle,  cap.  xliv,  in  Thorpe, 
op.  cit.,  p.  471.  Secular  sources  are  mentioned  infra,  chap.  v. 

1  As  shown  by  location  of  MSS.,  discussed  infra,  chaps,  i  and  iv.  For 
a  rather  plausible  theory  that  the  Penitentials  developed  and  spread 
private  penance,  vide  Watkins,  op.  cit.,  but  especially  infra,  ch.  ii,  sects. 
2  et  seq.,  on  penance. 


j6  ENGLISH  PENITENTIAL  DISCIPLINE  [374 

supplementing  the  primitive  Germanic  laws.  Much,  also, 
still  needs  to  be  done  on  textual  questions  that  are  still  un¬ 
solved  or  obscure,  as  well  as  in  utilizing  penitential  evidence 
from  new  angles,  correcting  inaccurate  use  of  it  by  past 
writers,  and  the  like.1 

The  early  collections  and  editions  of  the  Penitentials  by 
Martene  and  Durand,  Mansi,  d’Achery,  Basnage,  Canisius, 
de  la  Barre,  Morinus,  Sirmond,  Mai,  Spelman,  Wilkins, 
Baluze  and  Petit 2 — all  before  the  nineteenth  century — are 
marred  by  credulous  and  careless  acceptance  of  spurious  or 
interpolated  texts,  and  by  lack  of  extensive  critical  colla¬ 
tion  of  the  many  manuscripts  of  penitentials  extant.3  Was- 
serschleben’s  Beitrage  zur  Geschichte  der  vorgratianischen 
Kirchenrechtsquellen,  in  1839;  Mone’s  Quellen  und  Forsch- 

1  Modern  writers  on  the  history  of  penance,  of  liturgy  and  of  other 
ecclesiastical  institutions  who  have  used  materials  from  the  Penitentials 
will  be  cited,  with  comments  infra,  especially  throughout  chaps,  i,  ii, 
iii,  iv  and  vi.  On  paganism  in  England,  penitential  evidence  has  been 
used  incorrectly  by  Fischer,  Aberglaube  der  Angclsachsen  (Meiningen, 
1891),  who  uses  many  pseudonymous  works  as  genuine;  on  the  history 
of  civilization  in  Friedberg,  Aus  den  dcutschen  Bussbiicher  (Halle, 
1868) — an  excellent  little  book;  and,  on  taboo,  by  K.  Bockenhoff,  in 
Th.  Q.,  XXXVIII  (1906),  186  et  seq.,  and  in  his  Die  apostol.  Speisegesctz 
i.  d.  erst  5  Jahrhundertcn  (1903),  and  in  Speisesatz.  mosaische  Art  i.  d. 
mitteldlterliche  Kirchenrechtsquellen  Morgen  -  und  -  Abendlands  (1907). 
Other  works  will  be  mentioned  in  the  “  General  Bibliography  ”  at  the 
end  of  this  work. 

2  More  definite  bibliographical  details  will  be  given  infra,  this  chapter, 
chap,  iv,  and  in  the  “  General  Bibliography.” 

3  For  list  of  mss.,  see  the  critical  works  and  editions  of  Schmitz, 
Wasserschleben,  Haddan  and  Stubbs,  Kunstmann,  Hildenbrand,  Vering, 
Fournier,  Meurer,  Zettinger,  Albers,  Hormann,  etc.,  mentioned  in  con¬ 
nection  with  individual  penitentials  infra,  chs.  i,  iv.  The  researches  of 
others,  e.  g.  Antonius  Augustinus,  the  Ballerini,  and  Spittler,  as  well  as 
those  of  Binterim,  were  very  limited  and  comparatively  unimportant ; 
vide  Wasserschleben,  “  ]/orrede,”  pp.  iv  et  seq.  Some  suggestive  work 
was  also  done  by  Aug.  Theiner  Disquisitiones  criticae  (Rom.  1836)  ;  cf. 
Schmitz,  vol.  I,  p.  i  et  seq. 


375]  HISTORICAL  AND  CRITICAL  INTRODUCTION  ly 

ungen /  in  1830;  KunstmanrTs 2  Lateinische  Poenitenticd- 
biicher  der  Angelsachsen;  and  Thorpe’s  3  texts  of  Anglo- 
Saxon  penitentials,  brought  to  light  or  suggested  new  manu¬ 
scripts  and  readings,  but  failed  to  settle  many  difficult  ques¬ 
tions  of  authorship  and  of  source  relationship.4 

Thoroughly  critical,  excellent  editions  and  collation  of 
penitential  manuscripts  were  first  made  by  Hildenbrand 
and  Knust.5  In  1 851 ,  Wasserschl eben  published  a  parti¬ 
cularly  scholarly  edition  of  the  Penitentials,  the  general  con¬ 
clusions  of  which  have  been  accepted  by  most  scholars,  with 
a  few  exceptions,  to  be  noted  later; c  and  his  work  is  now 
regarded  as  truly  epoch-making.  In  1873,  articles  by 

‘Wasserschleben,  Bcitrage,  etc.  (Leipzig,  1839),  has  valuable  hypoth¬ 
eses.  See,  especially,  pp.  78  et  seq.;  cf.,  also,  the  reviews  of  Jacobson 
in  Allg.  Lit.-Z.  (1839),  no.  214  et  seq.,  and  by  Bickell,  in  the  Krit. 
Jahrb.  f.  d.  Rechtswiss.  (1839),  p.  390  et  seq.,  and  cf.  Vering,  loc.  cit., 
p.  205,  no.  1,  Mone,  op.  cit.,  especially  I,  494  et  seq. 

1  Mainz,  1844. 

*  Thorpe,  op.  cit.,  in  Record  Commission,  Anc.  Laws  and  Institutes  of 
England  (Lond.,  1840),  still  has  some  value  for  the  A-S.  texts  of 
penitentials,  though  wrong  on  authorship. 

4  See  details  under  individual  penitentials  infra,  chs.  i,  iv;  cf.  sum¬ 
maries  by  Wasserschleben  and  Vering,  loc.  cit.,  and  good  summaries  by 
Vering  in  K.  Lex.,  Herzog-Hauck,  DCA.,  etc.,  and  an  especially  fine 
treatment  by  P.  Fournier,  in  RHLR.,  VI  (1901),  and  Hormann,  loc.  cit. 

5  K.  Hildenbrand,  Untcrsu chung en  iiber  die  germanischen  Ponitential- 
bucher  (Wurzburg,  1851).  For  further  details,  infra,  passim.  The 
preparatory  collation  in  ms.  by  Knust  greatly  aided  Wasserschleben. 

8  Agrees  essentially  with  Hildenbrand,  as  regards  the  English  peni¬ 
tentials  ;  and,  in  spite  of  the  attacks  of  Schmitz,  is  generally  accepted 
as  regards  the  influence  of  the  English  and  Celtic  penitentials,  as  op¬ 
posed  to  the  “  Roman  Penitential.”  In  qualification  of  the  above,  some  of 
Wasserschleben’s  Protestant  conclusions  on  penance  are,  naturally,  op¬ 
posed  by  Catholic  scholars ;  but  they  accept  many  of  his  textual  criticisms 
and  most  of  his  readings.  Exceptions  are  noted  infra,  chaps,  i,  iv,  under 
the  penitentials  of  pseudo-Cummean,  pseudo-Bede  I  and  II,  Marten- 
ianuin,  and  the  text  of  the  pseudo-Roman  Penitential.  For  detailed 
references  on  the  controversies  over  authorship,  etc.,  infra,  particularly 
chaps,  i,  iv,  v  and  vi. 


\ 


jg  ENGLISH  PENITENTIAL  DISCIPLINE  [376 

Vering  1  offered  additional  suggestions  of  value  for  the  in¬ 
terpretation  of  the  Penitentials,  their  sources,  and  the  im¬ 
portance  of  penance  as  connected  with  medieval  secular  law. 
Haddan  and  Stubbs,  from  1869  to  1878,  republished  Was- 
serschleben’s  texts  of  the  early  British  penitentials,  together 
with  excellent  texts  for  the  English  penitentials  of  Egbert 
and  of  Bede;  but  their  greatest  contribution  was  in  publish¬ 
ing  a  text  f  or  the  Penitential  of  Theodore,  considered  better 
than  those  in  the  editions  of  Wasserschleben  and  of  Schmitz. 

For  the  Penitential  of  Columban  better  texts  and  excellent 
textual  criticism  were  presented  by  Seebass  in  1883,  1893, 
1896  and  1897. 2  In  1886  and  1896,  Schmitz,  in  two  vol¬ 
umes,  published  some  new  penitentials  and  collated  numerous 
manuscripts  in  addition  to  those  used  by  Wasserschleben, 
Haddan  and  Stubbs,  and  others.  In  these  and  several 
articles,  Schmitz  attempted  to  belittle  the  influence  of  the 
British  and  Anglo-Saxon  penitentials,  by  substituting  the 
so-called  “  Poenitentiale  Romanum  ”  as  model  or  archetype 
for  the  chief  Continental  penitentials.3  But  his  main  con¬ 
tentions  have  not  found  acceptance  among  the  great  majority 
of  scholars;  and,  in  spite  of  the  large  number  of  manu- 

1  In  AKKR.,  vol.  xxx,  pp.  204-209  and  365-371. 

2  O.  Seebass,  dissertation  Uber  Kolumbans  v.  Luxueil  Klosterregel  u. 
Bussbuch,  (1883)  ;  cf.  better  edition  and  nn.  in  ZKG,  XIV  (1893),  p. 
430;  ibid.,  XVII  (1896),  pp.  215  et  seq.;  ibid.,  XVIII  (1897),  pp.  58 
et  seq.  These  articles  also  possess  great  value  for  details  on  Celtic 
penitentials,  and  in  general.  Also  vide  infra,  on  Celtic  penitentials  for 
controversy. 

3  For  bibliographies,  see  “  General  Bibliography,”  at  the  end  of  this 
work.  For  his  other  articles  in  support  of  the  “  Roman  Penitential  or 
Penitentials,  vide  infra,  this  chapter,  separation.  The  two'  chief  edi¬ 
tions  and  critical  works  by  Schmitz  have  been  Die  Bussbucher  und  die 
Bussdisciplin  dcr  Kir  die  (Mainz,  1883),  cited  by  me  as  “Schmitz  I,” 
and  his  Die  Bussbucher  und  das  kanonische  Bussverfahrcn,  cited  here¬ 
after  as  Schmitz  II”  (D'iisseldorf,  1898).  For  his  other  critical  work 
on  the  Penitentials,  infra,  this  chapter,  on  the  pseudo-Roman  Peniten¬ 
tial  and  the  British  penitentials. 


19 


377]  historical  and  critical  introduction 

scripts  cited  by  him,  his  textual  methods  have  been  severely 
criticised  by  Albers  1  and  Ehrhard.2  But  the  completeness 
of  his  index  and  the  inclusion  of  new  texts  give  value  to  the 
works  of  Schmitz,  when  checked  on  doubtful  details  by 
others.  On  the  chief  questions  of  textual  interrelationship 
and  controverted  questions  of  influence,  especially  fine  re¬ 
sults  have  been  published  more  recently  by  Fournier,3  Her¬ 
mann,4  and  others,5  most  of  them  strongly  opposing  the 
main  contention  of  Schmitz  as  to  the  “  Roman  penitential.” 
There  have  been  many  treatises  6  on  the  influence  of  the 
Penitentials  upon  canon  law,  food  prohibitions,  and  other 
phases. 

SECT.  3.  PHASES  OF  PENITENTIAL  INFLUENCE 

Various  phases  of  the  influence  of  the  Penitentials  and 
of  penance  have  been  discussed  by  authorities  on  the  develop¬ 
ment  of  canon  law,  church  history,  primitive  religion,  com¬ 
parative  law,  and  other  subjects.7  But  many  of  these  works 

1  B.  Albers,  in  AKKR.  (1901),  LXXXI,  especially  418  et  seq.,  criti¬ 
cizing  Schmitz’s  versions  of  the  Penitentials  of  Bede,  pseudo-Bede, 
pseudo-Cummean  and  Egbert.  For  further  details,  infra ,  this  chapter 
and  chap,  iv,  under  these  penitentials. 

2  Ehrhard,  in  Allgem.  Litteraturblatt,  XV  Jahrgang,  nr.  6,  Spalte 
163,  cited  by  Albers,  loc.  cit. 

3  Fournier,  in  RHLR.,  VI  (1901),  289  et  seq.;  VII  (1902),  59  et  seq. 
and  121  et  seq.;  VIII  (1903),  528  et  seq.;  IX  (1904),  97  et  seq.;  and 
his  more  recent  articles  and  books  on  the  Italian  penitentials,  etc. 

*  W.  von  Hermann,  in  Melanges  Fitting  (Montpellier,  1908),  and  in 
Z.  d.  Savigny  Stiftung  f.  Rechtsgeschichte ,  Kanonische  Abt.,  I  (1911), 
195  et  seq.,  and  II  (1912),  in  et  seq. 

5  For  critical  works  on  the  Penitential  of  Cummean  and  others,  infra , 
this  chapter  and  chap.  iv. 

6  See  the  list  in  Sagmuller,  Lehrbuch  des  katholischen  Kirchenrechts, 
(2  vols.,  Freiburg  i.  B.,  1914),  I,  153  et  seq. 

7  One  of  the  most  valuable  discussions,  suggesting  excellent  fields  for 
further  research,  is  the  stimulating  book  by  E.  Friedberg,  Aus  den 
deutschen  Bussbiicher  (Leipzig,  1868).  For  discussions  of  topics  con¬ 
nected  with  comparative  law,  vide  infra ,  ch.  v;  for  others,  supra,  sect.  1. 


20 


ENGLISH  PENITENTIAL  DISCIPLINE 


[378 

have  become  antiquated  very  rapidly,  because  of  the  great 
changes,  already  outlined,  of  expert  opinion  on  the  author¬ 
ship,  place,  source-relationship,  and  inter-influence  of  in¬ 
dividual  penitentials.1  Then,  too,  comparatively  recent  re¬ 
search  into  the  history  of  penance  has  cast  doubt  upon  tradi¬ 
tional  views  as  to  public  penance  and,  possibly,  the  manner 
of  the  early  administration  of  penance  in  the  Celtic  Church. 
In  the  main,  the  new  theories  have  been  neglected  in  the  chief 
editions  of  the  Penitentials,  as  well  as  by  other  writers.2  In 
addition,  the  growing  development  and  application  of  an¬ 
thropological,  comparative  methods  to  the  history  of  re¬ 
ligion  and  that  of  law,  during  the  past  half  century  or  so, 
have  necessitated  and  also  facilitated  more  accurate  and  more 
complete  interpretation  of  penitential  material  connected 
with  these  institutions.3 

As  the  overwhelming  majority  of  writers  on  the  Peni¬ 
tentials  have  neglected  to  utilize  their  materials  from  these 
viewpoints,  and  as  there  exists  at  present  no  reliable  guide 
in  English  to  the  editions  and  critical  apparatus,  the  present 
writer  believes  that  the  time  is  now  ripe  for  a  new  treatise. 
In  fact,  he  believes  that  the  penitential  material,  both  in  the 
Penitentials  and  elsewhere,  offers  a  fruitful  field  for  many 
valuable  contributions.  The  need  for  further  research,  how¬ 
ever,  is  especially  noteworthy  in  regard  to  the  moral  in- 

1  Important  matters  bearing  on  the  chronological  appearance,  for  in¬ 
stance,  of  public  penance  in  England,  and  the  operation  of  ecclesiastical 
law  in  a  given  time  and  place.  Many  modern  authorities,  in  particular, 
often  use,  as  native  English,  several  penitentials  of  Frankish  origin,  c.  g. 
P.  Ps.  Th.,  Ps.  Bed.,  Ps.  Egb.,  etc.  Instances  and'  authorities  are  given 
in  chs.  ii,  iv,  vi. 

*  For  the  new  views  of  Funk,  Koch,  Fournier,  and  others,  vide  infra, 
ch.  ii,  where  the  recent  contributions  of  Watkins  to  the  literature  on 
penance  also  will  be  discussed. 

3  E.  g.,  by  the  use  of  new  material  explaining  private  custom  and  tribal 
law,  affecting,  among  others,  the  treatment  of  perjury,  religious  safe¬ 
guards  of  the  oath,  and  others.  Vide  infra,  chaps,  v,  vi. 


21 


379]  historical  and  critical  introduction 

fluence 1  of  the  Penitential's,  and,  in  particular,  the  part 
which  they  played  in  assisting  the  secular  laws. 

But  the  vast  extent  of  the  literature  on  questions  con¬ 
nected  with  the  Penitentials,  together  with  the  very  great 
diversity  and  amount  of  source-material  on  these  questions, 
have  led  the  present  writer  to  narrow  the  scope  of  this 
treatise.  We  shall,  therefore,  discuss  the  infiuence  of  those 
penitential  practices  and  codes  which  originated  or  were 
used  2  in  England  or  among  the  Welsh  and  Irish  in  the  pre- 
Norman  period.  For  comparison  with  Continental  practices, 
we  shall  also  adduce,  in  the  notes,  some  citations  from  the 
principal  Continental  penitentials,  especially  from  those  giv¬ 
ing  information  on  Germanic  and  Celtic  institutions. 

SECT.  4.  PROBLEMS,  DIFFICULTIES,  AND  CONTROVERSIES 

Among  the  first  of  the  diAIculties  attending  research  in 
the  Penitentials  is  the  great  variation  of  texts  and  individual 
readings,  due  partly  to  careless  copyists,  interpolations  of 
later  editors  to  fill  gaps  in  the  text,  and  the  like.  Closely 
connected  with  this  is  the  uncertainty  concerning  the  author¬ 
ship  3  of  individual  penitentials.  In  view  of  the  widely 

1  On  the  above  phases,  together  with  magic,  various  regulations  against 
“unclean  acts”  (taboo),  and  others,  see,  also,  §  5. 

2  Although  the  English  origin  of  the  Penitentials  of  pseudo-Bede, 
pseudo-Egbert,  and  pseudo-Theodore  and  of  the  'Canons  of  pseudo- 
Edgar  is  justly  disputed,  yet  their  use  in  England  undoubtedly  influ¬ 
enced  the  Church  there  and,  in  the  imposition  of  penance,  the  laity  as 
well.  This  amply  justifies  the  careful  use  of  the  material  in  them, 
when  checked  by  native  sources  and  even,  in  some  cases,  when  not  so 
supplemented,  as  showing  attempts  to  innovate.  There  was  also  close 
textual  connection  between  our  main  group  and  the  Continental  peni¬ 
tentials.  Vide  infra,  chaps,  i,  iv,  v,  vi. 

3  Sometimes  even  the  country  of  origin.  The  texts  sometimes  repre¬ 
sent  distinct  manuscript  penitentials  which  may  have  been  used  in  indi¬ 
vidual  dioceses  or  churches ;  vide  infra,  chaps,  i,  iv.  Inadequate  atten¬ 
tion  to  important  variations  in  penitential  material  has  often  marred 
the  work  of  various  writers;  vide  infra,  chaps,  ii,  iii,  vi,  passim,  on 
various  phases  of  penance. 


22 


ENGLISH  PENITENTIAL  DISCIPLINE 


[380 

varying  texts,  we  shall  find  it  necessary  to  cite  somewhat 
extensively  variants  which  affect  the  general  meaning  or 
extent  of  individual  penances,  even  in  the  case  of  manuscripts 
generally  credited  to  the  same  original  authors.  Further¬ 
more,  some  difficulties  of  interpretation  will  be  considerably 
elucidated  by  materials  from  the  contemporary  secular  laws. 
Many  others  are,  at  least  partially,  explained  by  comparison 
with  the  known  detail  of  the  contemporary  administration 
of  penance  on  the  Continent. 

SECT.  5.  THE  SOURCES  FOR  THE  MEDIEVAL  PENITENTIALS  1 

It  is  well  known  that  several  other  groups  of  penitential 
canons  were  more  or  less  closely  related  to  the  English 
penitentials,  either  as  sources  for  the  latter  or  as  influenced 
by  borrowing  from  English  models.  These  close  relation¬ 
ships  were  often  of  the  utmost  importance  textually  and 
for  the  transference  of  customs. 

Foremost  among  the  groups  which  influenced  the  English 
penitentials  as  well  as  others  are  those  writings  which  may 
be  termed  the  sources  of  the  Penitentials.  These  sources 
were  of  various  kinds. 

According  to  Schmitz,2  the  chief  sources  for  those  peni¬ 
tentials  which  were  written  after  the  fifth  century  may  be 
divided  into  two  groups :  the  Canonical  Letters  of  the  Greek 
fathers ;  and  the  conciliar  decisions  and  papal  deoretals  3  of 
the  first  five  centuries.  But  one  must  add  many  others  to 
his  list.  In  particular,  there  was  borrowing  from  other 

1 1,  e.  those  of  the  Western  Church  from  the  fifth  century  forward. 

1  Schmitz,  I,  34  et  scq.;  cf.  Wasserschleben,  op.  cit.,  “Vorrcde”  and 
under  his  texts  of  individual  codes. 

3  Schmitz  and  Wasserschleben,  loc.  cit.;  Vering,  in  AKKR.,  XXX,  p. 
208,  also  see  the  edition  by  Bickell,  in  his  Gcschiclite  dcs  Kirchen- 
rechts  (Giessen,  1873),  I,  "  Beil  age,”  I,  107  et  seq.  For  the  early 
African  councils  as  sources:  Wasserschleben,  3-4;  cf.  Schmitz,  I,  45. 


381]  HISTORICAL  AND  CRITICAL  INTRODUCTION  23 

Church  fathers  and  early  works:1  e.  g.  from  Augustine; 
Origen;  possibly  from  the  Ordinatio  Ecclesiae  Apostolicae 
and  the  Constitutiones  Apostolicae;  and  from  the  so-called 
Lex  Dei.2  Likewise  the  Penitentials  borrowed  from  the 
works  of  various  medieval  scholars;  e.  g.  Caesarius  3  of 
Arles  and,  possibly,  St.  Eloi  or  Eligius  of  Noyon  and  other 
medieval  writers  or  compilers  of  canon  law.  Very  in¬ 
fluential,  also,  were  the  deorees  of  later  councils  and  synods,4 
from  the  sixth  century  forward.  So,  too,  were  the  more 
or  less  genuine  medieval  collections  of  the  canon  law :  e.  g. 
the  Collectio  Hibernensis ; 5  the  Capitula  of  Benedictus 
Levita;  the  so-called  Statuta  s.  Bonifacii;  possibly  the 
Pseudo-Isidoriana ;  and  the  Capitula  of  Ivo  or  Ebbo  of 
Chartres.6  Finally,  earlier  penitential  codes  often  influenced 
later  ones.  1 

1  For  the  Ordinatio  as  a  source:  Schmitz,  I,  46,  and  Bickell,  op.  cit., 
supra,  passim.  For  the  Constitutiones  Apostolicae,  see  the  text  of  the 
Penitential  of  Theodore  in  Wasserschleben’s  edition;  also  infra,  chap, 
iv.  For  the  influence  of  Augustine,  Origen  and  others,  Lea,  Auricular 
Confession,  I,  82-83. 

1  Vide  Schmitz,  I,  194  et  seq.;  cf.  Th.  Q.,  LXXXII  (1900),  616,  but 
especially  ibid.  (1906),  by  Sagmiiller;  also  the  standard  editions  listed 
by  Sagmiiller,  KR.,  I,  143  et  seq. 

3  For  the  influence  of  Caesarius  of  Arles  upon  the  Penitentials :  Lea, 
op.  cit.,  I,  42,  especially  on  methods  of  expiation;  also  cf.  Lea  and 
Hormann,  opp.  citt.,  under  their  discussions  of  the  Statuta  ecclesiae 
antiqua.  In  particular,  see  an  article  by  P.  Lejay,  “  Le  role  theologique 
de  C.  d’A.”,  in  RHLR.  (1905),  468  et  seq. 

4  Lea,  loc.  cit.;  cf.  infra,  under  individual  penitentials  in  chaps.  1 
and  iv. 

5  On  the  Hibernensis  as  related  to  the  Penitentials,  infra,  this  chapter, 
under  the  British  and  Irish  penitentials. 

6  On  the  Capitula  of  Benedictus:  Hormann,  op.  cit.,  p.  7  and  note  15 5 
also  infra,  this  chapter,  under  the  pseudo-Theodore.  On  Ivo  of 
Chartres :  Hormann,  op.  cit.,  15  and  note  46. 

For  further  detail  on  sources,  vide  supra,  the  critical  works  of  Four¬ 
nier  and  others  on  individual  penitentials  in  this  chapter;  also  chap,  iv 
for  the  sources  of  the  English  group. 


24 


ENGLISH  PENITENTIAL  DISCIPLINE 


[382 

(1)  The  Canonical  Letters  of  the  Greek  fathers  were 
certain  well-known  epistles  written  by  preeminent  bishops 
and  Church  fathers,  especially  among  the  Greeks,  in  the 
early  centuries  of  the  Christian  church,  in  answer  to  ques¬ 
tions  on  church-discipline.  In  spite  of  their  somewhat 
private  character,  these  answers,  through  their  orthodoxy 
and  the  eminence  of  their  authors,  came  to  be  used  in  other 
dioceses  as  well  and  to  be  valued  as  ecclesiastical  norms,  as 
canons  for  the  discipline  of  penance,  gaining  the  name  of 
“  canonical  letters.”  1  Of  these  letters,  the  most  influential 
upon  the  penitentials  of  Great  Britain  and  Ireland  discussed 
in  this  work  are  those  of  Gregory  Thaumaturgus  of 
Neocaesarea  and  of  Gregory  of  Nyssa,  but  especially  those 
of  Basil  the  Great. 

The  Canonical  Letters  of  Basil 2  the  Great,  in  particular, 

1  On  the  Canonical  Letters  as  related  to  the  Penitentials :  Wasser- 
schleben,  1  and  passim;  Schmitz,  I,  34  et  seq.,  102  et  seq.,  and  his  “  Ein- 
leitung,”  also  infra,  chs.  i,  iv,  under  the  sources  of  individual  peniten¬ 
tials.  For  good  summaries  of  the  canonical  letters :  KLex.,  II,  1571- 
1572;  Alzog,  Church  Hist.,  I,  732;  Rauschen,  Buscsakrament ,  158.  Texts 
of  portions  of  the  canonical  letters  are  in  Watkins,  op.  cit.,  294  et  seq., 
after  Migne. 

2  For  the  Canonical  Letters  of  Basil,  as  sources  for  the  Penitentials : 
Schmitz,  I,  36  et  seq.  and  passim;  Wasserschleben,  p.  4;  but  especially 
the  Penitential  of  Theodore  in  the  editions  of  the  above  writers;  while 
others  will  be  mentioned  infra,  chs.  i  and  iv,  under  individual  peniten¬ 
tials;  also  cf.  Vering,  in  AKKR.,  XXX,  passim,  and  DC  A.,  II,  1608. 

For  editions :  the  Opp.  in  MPG.,  XXIX-XXXI,  and  especially  in 
Pitra,  Juris  ecclcsiastici  Graecorum  historia  et  monumcnta  (Rome, 
1864)  ;  also  the  English  translation  in  NPNF.,  VIII  (ed.  W.  B.  Jack- 
son,  1895).  For  texts  on  penance,  vide  Watkins,  op.  cit.,  32 2  et  seq., 
who  accepts  them  as  Basil’s  but  believes  that  his  canons  recorded  cus¬ 
tomary  discipline  in  Caesarea  and  the  neighboring  churches,  rather 
than  innovations.  For  the  controversy  over  their  genuineness :  Schmitz, 
L  39  ct  seq.,  520;  Wasserschleben,  2;  Frank,  Bussdisciplin,  439;  Bin- 
terim,  Dcnkwurdigkeiten,  366  et  seq.;  but  especially  the  excellent  essay 
by  F.  Loofs,  (Halle,  1879).  Cf.  Sagmuller,  KR.,  I,  52,  152,  and  II,  228, 
391.  In  view  of  the  constant  use  of  these  canonical  letters  as  Basil’s 
in  the  Penitentials,  modern  doubts  as  to  their  authenticity  have  little 
bearing  on  the  influence  of  the  letters  upon  the  Penitentials. 


25 


383]  historical  and  critical  introduction 

exercised  a  very  strong  influence  upon  the  course  of  penance 
and  the  content  of  penitentials.  The  chief  of  Basil’s  canons, 
for  our  purposes,  are  devoted  to  penances  for  violation  of 
virginity,  second  marriage,1  magic,  violation  of  graves, 
homicide  of  various  kinds,  adultery,  incest,  theft,  perjury, 
abortion,  idolatry,  infanticide,  and  other  offences  ;  as  well 
as  some  regulations  regarding  the  disabilities  of  penitents. 
The  above  list  shows  clearly  the  comprehensiveness  of  these 
canons;  and  it  may  be  remarked,  in  passing,  that  the  penances 
prescribed  by  Basil  are  especially  severe,  in  comparison  with 
others. 

Closely  related  in  content  to  the  Canonical  Letters  of 
Basil  the  Great  is  the  similar  letter  of  Inis  brother,  Gregory 
of  Nyssa,  (372-95).  This  letter  treats  in  detail  the  origin 
and  nature  of  the  three  faculties  of  the  soul ;  in  eight  canons 
prescribes  the  penances  for  fornication,  homicide,  theft, 
apostasy,  sacrilege,  adultery,  incest,  and  sodomy;  and  depicts 
the  methods  of  penance.  These  canons  2  enjoyed  a  high  re¬ 
putation  for  orthodoxy,  and  their  influence  upon  penitentials 
was  very  strong. 

The  Canonical  Letter  3  of  Gregory  Thaumaturgus,  (ca. 
258),  is  mainly  devoted  to  the  treatment  of  the  lapsed  and 

1  Technical  “  digamy.” 

2  The  letter  is  addressed  to  Letojus,  bishop  of  Melitene,  about  Easter, 
A.  D.  803.  It  is  edited  in  MPG.,  XLV,  221  ct  seq.,  with  Latin  transla¬ 
tion;  in  the  Opera,  ed.  by  Front  de  Due  (2  vols.,  Paris,  1603);  with 
commentary  by  Forbes  and  Oehler  (1855,  unfinished)  ;  but  is  omitted 
in  the  English  translation  of  Gregory  of  Nyssa  in  ANF.,  V.  For  the 
high  reputation  of  the  letter:  Schmitz,  I,  44  ct  seq.;  Watkins,  op.  cit., 
298,  326.  Passages  borrowed  from  the  letter  by  the  Penitentials  are  in¬ 
dicated  infra,  chs.  i  and  iv,  under  individual  codes.  The  “  faculties  of 
the  soul  ”  treated  in  it  were :  “  Ratio,  concupiscentia,  ira.” 

s  For  comments  and  texts :  Schmitz,  I,  37-38  and  n.  1 ;  MPG.,  X,  1019- 
1048;  the  edition  by  F.  Loofs  ( 1906 ),  p.  333,  n.  7;  the  English  trans¬ 
lation  in  ANF.,  VI;  the  edition  of  the  Opera  by  G.  Voss;  and  Watkins, 
op.  cit.,  222-224,  after  Migne,  and  Watkins’  English  translation,  besides 
his  comments  on  pp.  239  et  seq. 


26  ENGLISH  PENITENTIAL  DISCIPLINE  [384 

other  important  contemporary  questions,  'but  it  established 
important  prescription’s  for  the  penance  for  idolatry  and 
similar  sins.  It  had  some  influence  upon  penitential  codes, 
though  less  than  the  two  preceding. 

(2)  The  collection  of  canons  compiled  by  Dionysius1 
Exiguus,  at  the  end  of  the  fifth  or  beginning  of  the  sixth 
century,  was  frequently  used  by  the  compilers  of  the  Pemi- 
tentials  as  a  source  for  the  canons  of  councils  before  that 
time.  As  part  of  a  later,  larger  2  compilation  by  Dionysius, 
this  collection  attained  the  highest  reputation  and  most  ex¬ 
tensive  use  in  the  medieval  Western  Church  and  even  in  the 
Orient.  In  this  later  form,  apparently,  it  was  introduced 
into  England  by  Theodore  of  Canterbury;  3  though  the  col¬ 
lection  introduced  as  the  Dionysio-Hadriana  into  the  Caro- 
lingian  empire  (A.  D.  774),  through  its  official  recognition 
by  the  diet  at  Aixda-Chapelle  (A.  D.  802),  probably  ex¬ 
ercised  greater  influence  upon  those  Frankish  penitentials 
which  borrowed  directly  from  the  Dionysiana .4  In  the 
Dionysiana  the  provisions  on  penance  are  numerous,  espec¬ 
ially  in  decisions  on  the  three  known  and  recognised  cano¬ 
nical  sins ;  and  they  show  great  harmony  with  the  prescrip¬ 
tions  of  the  canonical  letters. 

l!On  the  Dionysiana:  Sagmiiller,  KR.,  I,  150;  Maassen,  Fr.,  Geschichte 
der  Quellen  .  .  .  des  kanonischen  Rechts,  passim,  particularly  p.  428; 
Schmitz,  I,  47  et  seq.;  MPL.,  LXVII ;  but  especially  Turner,  C.  H.,  in 
his  Ecclesiac  occidentals  monumcnta,  I  (Oxford,  1899). 

2  Enlarged,  in  particular,  by  alleged  decretals  from  P.  Siricius  (A.  D. 
384-398)  to  Anastasius  II  (496-498).  Vide  Sagmiiller,  KR.,  I,  150. 
Later  there  were  many  other  additions,  especially  of  allegedly  papal 
materials.  For  an  excellent  edition,  see  G.  Voellus  and  H.  Justellus, 
Bibliotheca  jnr.  can.  veteris  (Paris,  1661),  pp.  101  et  seq. 

3  Vide  infra,  chap,  iv,  under  the  sources  of  Theodore. 

*  I.  e.  in  sections  which  do  not  borrow  from  the  early  Celtic  and  Eng¬ 
lish  penitentials,  but  still  show  influence  by  the  Dionysiana.  On  the 
borrowing  from  the  Dionysiana  by  the  Penitentials,  see  also  Schmitz,  I, 
150  et  seq. 


385]  historical  and  critical  introduction 

SECT.  6.  THE  CHIEF  CONTINENTAL  PENITENTIALS  1 


27 


Certain  Continental  peniteratials  are  important,  for  our 
purposes,  because  of  reciprocal  textual  influence  between 
them  and  our  group  and  because  they  supply  additional  illu¬ 
strative  material  for  comparison  on  important  points.  We 
shall,  therefore,  treat  briefly  the  most  important  among 
them,  following  in  the  main  the  authority  of  Schmitz  and 
of  Wasserschleben,  except  in  some  cases  where  positive  or 
fairly  definite  changes  in  scholarly  opinion  2  have  taken  place. 

The  full  development  of  the  system  of  penitentials  is 
generally  regarded  as  having  started  3  with  the  Celtic  codes 
of  David,  Vinnian,  and  others  of  the  early  British  Church, 
followed  by  those  of  Columban  and  Cummean,  on  the  Con¬ 
tinent  ; 14  and  by  the  Anglo-Saxon  penitentials  of  the  native 
group.  According  to  the  opinion  of  a  majority  of  scholars, 
these  codes  were  the  first 5  to  form  definite  models  for  peni¬ 
tentials  in  the  Western  Church,  in  spite  of  the  attempt  of 
Schmitz  to  demonstrate  that  the  “  Roman  group  ”  was  the 
first.  It  is  probable  that  the  influence  of  the  earlier 

1  We  omit  discussion  of  Eastern  penitentials,  other  than  the  treatment 
supra,  under  the  Canonical  Letters. 

2  Vide  infra,  this  chapter,  for  modifications  of  scholarly  opinion  in 
regard  to  the  penitential  codes  of  Columban  (iSeebass),  Cummean  (Zet- 
tinger),  the  pseudo-Theodore  (Hermann),  the  Valicellian  pentitentials 
and  others  (Fournier),  and  the  pseudo-Roman  Penitential  (Fournier 
and  others).  Also  see  chap.  iv. 

3  An  earlier,  less  influential  attempt  to  systematize  the  regulation  of 
penance  was  the  Codex  Ecclesiae  Africanae,  from  Carthage  ( ca .  A.  D. 
419).  Vide  Schmitz,  I,  49,  160,  and  DC  A.,  II,  1608. 

4  This  great  influence  of  the  Celtic  group  of  penitentials  is  supported 
by  the  overwhelming  verdict  of  the  chief  editors  and  critics  of  the 
penitential  codes  in  the  works  cited  in  this  chapter  and  infra,  chap  iv 
and  “General  Bibliography.”  Cf.  infra,  chaps,  i  and  iv,  under  indi¬ 
vidual  penitentials. 

“Opposed  to  Schmitz’s  theory  that  the  model  for  the  Western  Church 
was  the  so-called  “  Roman  Penitential.”  On  the  latter,  infra,  this 
chapter. 


28 


ENGLISH  PENITENTIAL  DISCIPLINE 


[386 

Welsh  penitentials  was  spread  by  missions  to  Ireland;  and 
■that  the  resulting  Irish  and  old  Welsh  codes  were  then  car¬ 
ried  by  the  Celtic  missions  to  Great  Britain  and  the  Con¬ 
tinent.  Thither  they  were  later  followed  by  the  English 
penitentials  of  Theodore  and  of  Bede,  which  had  been 
formed  largely  on  Celtic  lines  but  subsequently  exercised 
even  wider  influence.1 

From  the  seventh  century  onwards  the  number  of  peni¬ 
tential  codes  increased,  as  did  also  the  tendencies  to  elab¬ 
orate  the  distinctions  of  penances  assigned  for  long  cate¬ 
gories  of  sins.  There  also  sprang  up  a  new  group  of  peni¬ 
tentials  which  were  marked  by  their  arbitrary,  indiscriminate 
and  sometimes  lax  provisions.  The  use  of  these  and  of 
earlier  penitentials  was  favored  in  some  parts  of  the 
Frankish  domain,  particularly  in  centres  of  Celtic  or  Eng¬ 
lish  influence. 

But  they  encountered  opposition  elsewhere  which,  in  the 
reform  movement  of  the  ninth  century,  waxed  strong  under 
the  lead  of  powerful  prelates  and  reform  councils.2  These, 
however,  were  unable  to  suppress  the  chief  penitentials  then 
in  use  3  or  to  prevent  their  spread  and  textual  influence 

1  For  an  excellent,  brief  sketch  of  the  history  of  the  Penitentials,  vide 
Watkins,  op.  cit.,  603  ct  scq.,  but  especially  627  et  scq.,  643  et  seq.,  735 
ct  seq.,  and  757  et  seq.  On  the  influence  of  individual  groups  and  codes 
and  their  textual  relations,  infra,  this  chapter  and  chap.  iv. 

4  For  the  opposition  to  the  Penitentials:  Schmitz,  I,  1 19 ;  Lea,  op.  cit., 
II,  104;  Watkins,  op.  cit.,  694  et  seq.  On  Celtic  and  English  centers  of 
influence  in  the  Frankish  kingdom,  vide  Watkins,  op.  cit.,  5 37  et  seq., 
688  et  seq.,  and  his  last  chapter;  also  757  et  seq.  The  chief  opponents 
of  indiscriminate  use  were  men  like  Hincmar  of  Rheims,  Ivo  or  Ebbo 
of  Chartres,  Halitgar  of  Cambrai  and,  later,  Regino  of  Priim ;  the 
chief  councils  concerned — those  of  A.  D.  813  at  Chalons  and  Tours,  of 
Paris  (A.  D.  828),  and  of  Mainz  (A.  D.  847).  Vide  Watkins,  op.  cit., 
702  et  seq. 

3  Wasserschleben,  77  et  seq.;  Lea,  op.  cit.,  II,  104-105;  Scherer,  KR., 
I,  209,  note  3;  Dove,  in  ZKR.,  IV  (1864),  13  et  scq.,  with  many  refer¬ 
ences. 


387]  HISTORICAL  AND  CRITICAL  INTRODUCTION  29 

down  to  a  late  date.  But  the  reform  movement  succeeded 
in  encouraging  the  compiling  of  new  1  penitential  books  more 
strictly  in  accord  with  the  canons.  Although  these  reform 
books  soon  declined  to  a  position  subordinate  to  their  pre¬ 
decessors,  yet  they  possess  significance  for  the  English 
Church  because  some  of  them  furnished  models  for  late 
English  penitentials.  By  about  A.  D.  1050  the  Penitentials 
appear  to  have  spread  to  Rome  itself  and,  in  the  twelfth 
century,  passages  were  incorporated  into  the  canon  law  by 
Gratian  and  others.  In  the  twelfth  century  the  true  peni¬ 
tentials  were  probably  superseded  by  the  “  summae  confes- 
sorum”  2 

So  far  as  known  at  present,  the  first  Frankish  penitential 
in  point  of  time  was  that  by  the  Celtic  missionary  Colum- 
ban.3  This  followed  extensively  the  Penitential  of  Vin- 
nian,'4  formed  the  basis  for  numerous  undoubtedly  Frankish 
collections,  and  is  supposed  by  some  to  have  strongly  in¬ 
fluenced  the  development  of  penance  on  the  Continent  dur¬ 
ing  the  period  of  the  Penitentials. 

Coming  after  the  Penitential  of  Columban  but  nearly,  if 

1  Schmitz,  I,  712  et  seq.;  Wasserschleben,  535  et  seq.;  Watkins,  op. 
cit.,  712. 

2  Schmitz,  I,  “  Sechster  Theil  ”,  792  et  seq.  and  his  chapter  i  et  seq. 
and  II,  "  Vierter  Abschnitt,”  720  et  seq.;  Wasserschleben,  623  et  seq.; 
Sagmiiller,  KR.,  I,  155  et  seq.;  Watkins,  op.  cit.,  741  et  seq. 

1  Columban’s  Liber  de  Poenitentia  or  De  Poenitentiarum  mensura 
taxanda,  absolutely  distinct  from  his  strictly  monastic  rule  —  Regula 
Coenobialis  or  Regula  fratrum  Hibernensium  or  Columbani  Liber  de 
quotidianis  poenitentiis  monachorum.  On  the  Penitential  of  Colum¬ 
ban:  O.  Seebass’  edition  and  critical  work  in  his  dissertation  fiber  Co- 
lumbans  v.  Luxueil  Klosterregel  u.  Bussbuch  (1883);  and  his  articles 
in  ZKG.,  XIV  (1893),  430  et  seq.;  XVII  (1896),  215  et  seq.;  XVIII 
(1897),  58-76;  and  in  Deutsche  Zeitschrift  f.  Kirchenrecht  (1897),  24 
et  seq.  Seebass’  views  are  opposed  by  Schmitz’s  theory  of  the  “  Roman 
Penitential,”  q.  v.,  infra,  but  the  overwhelming  majority  of  scholars 
favor  the  former. 

4  Cf.  Seebass,  loc.  cit.;  Watkins,  op.  cit.,  590-594,  610,  613  et  seq. 


30 


ENGLISH  PENITENTIAL  DISCIPLINE 


[388 

not  wholly,  equalling  it  in  importance,  are  two  penitentials 
ascribed  to  Cummean,1  one  erroneously  the  other  correctly. 
It  is  believed  that  these  codes;  by  Columban  and  by  Cum¬ 
mean  may  have  been  very  influential  in  spreading  Celtic  cus¬ 
toms  2  on  the  Continent. 

The  so-called  “  Roman  Penitential  and  Roman  group,” 
edited  by  Schmitz  3  and  others,  have  been  assumed  by 
Schmitz  to  be  of  Roman  origin  and  to  have  constituted 
models  for  the  development  of  the  penitential  system.  But 
this  idea  is  rejected  by  the  overwhelming  majority  of 
authorities,  who  agree  with  Wasserschleben  and  Fournier 
that  they  are  of  late  Frankish  origin,  and  that  the  Celtic  and 
English  penitentials  formed  the  earliest  Western  models  for 
the  Western  penitentials.  Hence  the  pseudo-Roman  Peni¬ 
tential,  as  it  should  be  called,  had  no  influence  upon  the 

1  The  genuine  work  of  Cummean  is  published  by  Zettinger,  who 
locates  it  in  the  seventh  century;  vide  AKKR.,  LXXXII  (1902),  501  et 
scq.  This  is  now  generally  regarded  as  a  distinct  work  from  the  later 
Excarpsus  Cummcani  published  in  the  editions  of  Wasserschleben  and 
Schmitz.  This  latter  work  of  the  ninth  century,  founded  upon  the 
earlier  one,  is  called  by  me  “  Pseudo-Cummean.” 

1  See  the  main  thesis  in  Watkins,  op.  cit.,  passim;  also  infra,  this  chap¬ 
ter  and  chaps,  ii  and  iii,  on  the  Celtic  penitentials  and  on  private 
penance. 

3  The  pseudo-Roman  Penitential  was  first  published  by  Halitgar  of 
Cambrai  (d.  831),  and  by  Rhabanus  Maurus  (d.  856).  For  later  editions 
of  Basnage,  Canisius,  Morinus,  etc.,  vide  Wasserschleben  and  Schmitz, 
passim.  That  published  by  Schmitz  is  completer  than  Wasserschle- 
ben’s.  Schmitz’s  theory  of  origin  for  this  penitential  code  is  set  forth 
in  his  edition  of  the  Penitentials,  in  both  volumes,  passim  (many  places), 
and  in  his  articles  in  AKKR.,  XXXIII,  XXXIV  and  LXX.  Cf.  Vering, 
in  AKKR.  (1873),  and  Hildenbrand,  in  Kritische  Jahrbuch  f.  deutclie 
Rcchtswisscnschaft,  XVIII,  514,  and  his  Untersuchungen  iiber  die  gcr- 
manischen  P onitentialbiicher,  76.  This  theory  of  Roman  models  for 
the  Penitentials  is  rejected  absolutely  by  the  very  great  majority  of 
scholars,  who  favor  the  theory  of  Celtic  influence  instead;  vide  supra 
on  the  Celtic  penitentials,  and  infra,  this  chapter,  under  the  same  head. 


389]  HISTORICAL  AND  CRITICAL  INTRODUCTION  31 

native  British  and  English 1  penitentials  and  merits  no 
further  attention  here. 

There  appeared,  also,  penitentials  by  Halitgar  of  Cambrai, 
(d.  831)  and  by  Rhabanus  Maurus,2  (d.  856).  These  af¬ 
forded  powerful  opposition  to  the  use  of  previous  peniten¬ 
tials  for  a  time  and  strongly  influenced  the  text  of  peniten¬ 
tials  used  in  England  3  late  in  the  pre-Norman  period. 

One  of  the  most  important  Frankish  penitentials  con¬ 
nected  with  the  English  penitentials  in  the  late  pre-Norman 
period  is  that  formerly  but  erroneously  ascribed  to  Theo¬ 
dore.  This  well-known  compilation  has  been  extensively 
cited  as  genuine  by  scholars  4  who  mistakenly  follow  the 

1 1.  e.  the  older  English  penitentials  which  originated  in  England,  in 
contrast  with  those  used  there  later  but  of  Frankish  origin;  vide  infra, 
chap,  iv,  for  distinctions. 

’That  by  Halitgar  (written  some  time  between  A.  D.  817  and  831) 
contains  six  books,  of  which  the  sixth  book  contains  the  pseudo-Roman 
Penitential.  Vide  Schmitz,  I,  252  ct  seq.,  and  II,  266  et  scq.,  for  a  good 
edition,  far  better  than  the  incomplete  versions  in  Wasserschleben,  q.  v., 
passim,  and  the  still  poorer  edition  in  Migne,  MPL.,  CV,  651  et  seq. 
For  critical  matter,  see,  especially,  an  article  by  Nostitz-Rieneck,  in 
ZKT.,  XXI  (1896),  5 66  et  seq.,  and  another  by  Fournier,  in  RHLR. 
(1903),  528-549.  These  supersede  the  materials  mentioned  in  Maassen, 
Geschichte  dcr  Quellen,  etc.,  I,  863-869.  Also  see  separately  on  pseudo- 
Roman  Penitential. 

For  Rhabanus  Maurus’  penitential :  Maassen,  op.  cit.,  I,  870-871 ; 
Scherer,  op.  cit.,  I,  213  and  n.  26;  Schmitz,  I,  733-741;  MGH.,  Epp.,  V, 
462  ct  seq.-,  but  particularly  W.  Burger,  in  Katholik  (1902),  II,  51  et 
scq.,  and  J.  Schmidt,  in  Katholik  (1906),  II,  241;  and  MGH.,  Epp.,  V, 
566  et  seq.  The  earlier  critical  work  of  the  Ballerini  and  of  the  Migne 
edition  is  now  antiquated. 

3  For  the  influence  of  Regino  of  Priim,  vide  iSchmitz,  op.  cit.,  passim , 
and  infra,  chap.  iv. 

For  the  influence  of  Frankish  customs  on  late  English  penitentials, 
penance,  etc.,  infra,  chaps,  iii,  iv.  Cf.,  also,  Watkins,  Hist,  of  Penance, 
708-709,  who,  however,  omits  mention  of  their  influence  on  English 
penitentials  of  later  date. 

4  E.  g.  writers  in  Essays  in  A-S.  Law  (Boston,  1876),  Fischer,  Aber- 
glanbe  dcr  Angelsachsen  (Meiningen,  1896),  Lea,  Superstition  and 
Force  (Phila.,  1866,  1892),  and  others  who  use  this  spurious  work  as 
Theodore’s. 


32 


ENGLISH  PENITENTIAL  DISCIPLINE 


[390 

earlier,  poor  editions  of  Speknan,  Thorpe  and  Kunstmann. 
But,  since  the  time  of  Wasserschleben  and  of  Hildenbrand, 
it  has  been  regarded  by  the  best  authorities  as  a  Frankish 
pseudo-Theodore  of  the  ninth  1  century  and  is  so  used  by 
the  present  writer. 

•Compiled  from  numerous  sources  of  that  century  and 
earlier,  its  content  apparently  occupies  an  intermediate  posi¬ 
tion  between  the  earlier,  Celtic  and  Anglo-Saxon  peniten- 
tials,  on  the  one  hand,  and  the  opposing,  reactionary  peni- 
tentials  of  the  ninth  century,  on  the  other.  The  pseudo- 
Theodore  was  apparently  designed  for  an  extensive  use  and 
to  increase  the  practicality  of  penances,  but  it  fell  a  victim 
to  the  gradual  decline  of  penitential  discipline  in  the  Frankish 
Church  and  was  used  very  little  as  a  source  2  for  ecclesiastical 
ordinances,  as  compared  with  other  well-known  codes.  It 
is  of  interest  chiefly  because  of  its  influence  on  English 
laws  3  of  the  late  pre-Norman  and  early  Norman  periods. 
There  seems  to  be  no  conclusive  evidence,  as  yet,  that  it  was 
ever  used  directly  as  a  manual  of  confession  and  penance  in 
England. 

1  The  chief  sources  for  the  pseudo-Theodore  include  the  pseudo- 
Cummean  and  the  genuine  Penitential  of  Theodore,  with  lesser  bor¬ 
rowings  from  the  codes  of  Bede,  Egbert  and  Halitgar,  and  from  the 
pseudo-Roman  Penitentials.  On  these  matters,  vide  Hdrmann,  op.  cit., 
9-10,  and  passim;  the  articles  by  Fournier,  cited  supra,  sect.  2,  among 
the  critical  writings;  Schmitz,  I,  550-551,  and  II,  645-646,  677;  and  Hil- 
denbrapd,  op.  cit.,  38-39.  Some  material  may  have  been  independent 
and  arbitrary;  vide  Hormann,  op.  cit.,  11-12. 

1  It  influenced  sections  of  the  spurious  Excerptiones  Egberti  and  por¬ 
tions  of  the  spurious  Capitula  Thcodori  published  by  Petit;  also  parts 
of  the  later  Decretum  Burchardi  and  Corrector  Burchardi;  vide  opp.  citt. 
supra,  of  Hormann  and  of  Fournier,  passim. 

3  9 •  the  late  pseudonymous  Leges  Henrici  Prirni,  of  mingled  Frank¬ 
ish  and  Anglo-Saxon  origin ;  vide  Liebermann,  Gesetze,  II,  s.  v.  “Buss- 
biicher  ",  “  Poenitentialbiicher”,  “  Pseudo-Theodore  ”,  and  “  Kononcs”. 
Also  vide  infra,  chap.  iv.  Watkins,  op.  cit.,  omits  this. 


391  ]  historical  and  critical  introduction 


33 


SECT.  7.  THE  WELSH  AND  EARLY  BRITISH  PENITENTIALS 

Especially  important  for  the  penitential  system  were  the 
Welsh  and  early  British  and  the  Irish  penitentials.  Of  all 
the  penitential  codes  these,  as  we  shall  see,  were  of  greatest 
influence  for  the  English.  In  fact,  it  is  probable  that  their 
very  great  textual  influence  1  upon  the  English  group  was 
preceded  by  strong  preparatory  influence  of  these  earlier 
codes  in  organizing  the  penitential  system  in  the  British 
Church.  The  penitential  codes  native  to  Great  Britain  and 
Ireland  in  this  earlier  period  naturally  divide  into  two 
groups :  first,  the  Welsh  and  early  British,  and,  secondly, 
the  Irish.  The  importance  of  each  group  is  so  great  as  to 
merit  separate  attention.2 

According  to  the  leading  scholars  on  the  subject  of  the 
Penitentials,3  the  extant  penitentials  in  the  strict  sense  of 
the  word  which  originated  among  the  Welsh  or  by  Welsh¬ 
men  include  those  of  David  of  Menevia  and  of  Gildas.4 
In  addition  to  these,  drawn  up  for  the  use  of  confessors 

1  For  obvious  reasons,  Wasserschleben  and  other  editors  class  as 
Celtic  the  early  British  or  Welsh  penitentials  of  David  and  of  Gildas : 
and  the  Welsh  conciliar  decisions ;  the  Irish  Penitential  of  Vinnian  and 
the  Irish  conciliar  decisions ;  and  the  penitential  codes  of  Celtic  mis¬ 
sionaries  on  the  Continent.  But,  for  our  purposes,  a  geographical 
grouping  is  preferable,  as  will  appear. 

2  The  whole  Celtic  group  above,  with  the  English  penitentials  of  Theo¬ 
dore,  Bede  and  Egbert,  had  the  profoundest  influence  on  later  English 
and  Continental  ones.  On  this  influence,  vide  Maassen,  Quellen,  etc.,  I, 
784-786;  Loning,  KR.,  II,  435,  472  ;  Hinschius,  KR.,  IV,  16  et  seq.,  823 
et  seq.,  and  V,  85  et  seq.;  Sagmuller,  KR.,  I,  154-156;  Scherer,  KR.,  I, 
158-162,  208-214;  Rauschen,  Busssakrament,  150,  188;  and  the  works  on 
canon  law,  church  history  and  penance  mentioned  infra,  the  “  General 
Bibliography,”  of  which  all  support  the  theory  of  Celtic  influence 
rather  than  Roman.  Also  see  the  works  on  the  pseudo-Roman  Peni¬ 
tential,  supra. 

3  See  editions  cited  supra,  this  chapter,  and  individual  penitentials, 
infra,  this  chapter. 

4  For  dates,  infra,  this  chapter,  as  with  others  mentioned,  individually. 


34 


ENGLISH  PENITENTIAL  DISCIPLINE 


[392 

in  prescribing  penance,  there  are  also  sets  of  important 
penitential  canons  credited  to  Welsh  synods,  such  as  might 
have  been  issued  by  church  councils  or,  possibly,  in  some 
cases,  by  the  mixed  synods  so  typical  of  that  period  among 
the  Anglo-Saxons.1  These  penitential  canons  include  that 
credited  to  the  Synod  of  Brevi,  another  to1  that  at  “  Lucus 
Victoriae and,  possibly,  a  third  set  called  variously  “  C an¬ 
on  es  W alii ci”  or  the  “Indicia  Culparum.”  Of  these  peni¬ 
tential  canons,  all  have  been  published  by  Wasserschleben  2 
and,  after  him,  by  Schmitz,3  Haddan  and  Stubbs,4  and  Wil¬ 
liams;  5  while  individuals  among  them  have  been  separately 
published  in  various  editions  to  be  cited  below  in  discussing 
individual  penitentials  and  sets  of  penitential  canons. 

The  synod  of  Brevi  and  that  of  Lucus  Victoriae  are  gen¬ 
erally  regarded  0  as  Welsh  synods  of  the  time  of  David,  prob- 

1  See  use  of  term  “  synod  ”  for  mixed  assemblage  by  prologues  to 
Anglo-Saxon  Laws,  in  Liebermann,  Gesetse,  passim. 

Bright  believes  that  the  “  Synodus  Luci  Victoriae  ”,  or  “the  Synod  of 
Victory  ”,  as  he  calls  it,  “  was  properly  the  Synod  of  the  Wood  of  Vic¬ 
tory,  being  held  on  the  site  of  a  battle  in  which  Britons  had  been  suc¬ 
cessful  ”.  iHe  considers  “manifestly  absurd”  the  later  assumption  that 
it  and  the  Synod  of  Brevi,  (Llandewi-Breti) ,  were  held  by  authority  of 
the  Roman  see.  But  Bright  believes  that  they  and  other  parts  of  the 
Welsh  system  of  penance  exercised  a  great  influence.  As  an  example, 
he  says :  “  The  great  Irish-born  missionary  St.  Columban  directed  a  crim¬ 
inal  who  professed  contrition  to  spend  twelve  years  in  penance  among 
the  Britons.”  Vide  Bright,  op.  cit.,  36. 

*  Op.  cit.,  101  et  seq.,  partly  after  the  same  mss.  as  Martene,  op.  cit. 
IV,  coll.  7  et  seq.  Watkins,  op.  cit.,  587-602,  has  some  canons  after  H. 
and  S.  and  Wasserschleben. 

*  Op.  cit.,  I,  494  et  seq. 

4  Op.  cit.,  I,  113,  117-120,  127-137. 

5  Gildas,  II,  as  cited  on  individual  penitentials,  infra. 

*  For  the  following,  I  have  used,  in  addition  to  other  works  to  be 
cited,  the  following:  Wm.  Bright,  Chapters  of  Early  English  Church 
History  (Oxford,  1878,  3rd  ed.,  1897)  ;  J.  E.  Lloyd,  History  of  Wales 
(2  vols.,  London,  1911,  1912),  especially  vol.  i  of  the  2d  ed. ;  Willis-Bund, 
The  Celtic  Church  in  Wales. 


393]  HISTORICAL  AND  CRITICAL  INTRODUCTION  33 

ably  held  in  Northern  Wales,  shortly  after  the  middle  of 
the  sixth  century.1  Their  great  influence  upon  penitentials 
is  frequently  shown  by  the  numerous  citations  2  from  these 
synods.  The  chief  biographer  3  of  St.  David,  in  a  passage  4 
hitherto  neglected,  evidently  considers  that  the  decrees  of 
these  two  synods  5  were  among  the  Writings  of  St.  David 
himself.  For,  this  biographer  says,  “  From  which  (decrees) 
the  battles  of  the  Lord  were  fought,  as  may  be  found  in 
very  ancient  writings  of  the  father  (David),  partly  written 
with  his  own  holy  hand.”  Among  penitentials  most  strongly 
influenced  by  borrowing  from  the  acts  of  these  two  synods 
are  those  of  Theodore,  6  Bede,7  the  pseudo-Cummean  and 

1  On  the  controversy  over  their  origin,  vide  Williams,  Gildas,  II,  286 
and  notes,  for  an  excellent  summary;  cf.,  also,  H.  and  S.,  I,  11 7,  ascrib¬ 
ing  to  about  A.  D.  569,  and  Maassen,  Quellen,  etc.,  I,  786-787. 

2  Vide  infra,  this  section,  under  individual  penitentials. 

’Rhygyfarch  or  Ricemarch,  Life  of  St.  David,  written  much  later  by 
an  archbishop  of  iSt.  DavidJs,  published  in  Rees,  W.  J.,  Lives  of  the 
Cambro-British  Saints  (Llandovery,  1853),  to  he  cited  hereafter  by  its 
usual  abbreviation — “  Rees,  CBS.”  The  text  is  as  follows  (Rees,  CBS., 
139)  :  “  Ex  his  duabus  synodis,  omnes  nostre  patrie  ecclesie  modum  et 
regulam  Romana  auctoritate  acceperunt;  quarum  decreta  que  ore  firma- 
verat,  solus  ipse  episcopus  sua  sancte  manu  literis  mandavit.”  Cf.  the 
English  text  in  Rees,  CBS.,  442-443.  The  names  of  the  synods  are 
given  as  “  Brevi”  and  “Victoria”  ( loc .  cit.,  137,  139).  Some  of  this 
passage  is  found  in  Giraldus  Cambrensis,  from,  which  it  is  cited  by 
Wasserschleben,  8,  and)  iSchmitz,  I,  491,  without  noting  its  significance 
for  authorship.  See,  also,  the  Brewer  edition  of  Giraldus  ( Rolls  Scr., 
London,  1863),  vol.  21,  p  401 :  “Quarum  decreta  ore  promulgaverat 
praesul  David  sua  quoque  sancta  manu  literis  mandavit.” 

4Cf.  also  H.  and  S.,  I,  1 16  and  note  a,  which,  however,  omits  refer¬ 
ence  to  the  recording  by  David. 

5  For  editions  of  these  synods:  H.  and  S.,  I,  116-117;  Wasserschleben, 
103  et  seq.;  Williams,  Gildas,  II,  286-287;  Schmitz,  I,  493  et  seq.;  Mar- 
tene,  Thesaurus  Novus,  IV,  9. 

6  Vide  infra,  chap,  iv,  under  that  penitential. 

7  Vide  infra,  chap,  iv,  on  the  Penitential  of  Bede. 


36  ENGLISH  PENITENTIAL  DISCIPLINE  [394 

Egbert;  also  the  pseudo-Roman1  Penitential  and  the  Bigo- 
tian  Penitential.2 

The  Penitential  of  David,3  in  particular,  possesses  great 
significance  and  deserves  close  attention  because  it  probably 
exerted  a  powerful  influence  upon  the  early  British  Church; 
and  because  of  the  prominent  position  and  personality  of  its 
reputed  author  and  its  close  relations  to  the  English  peniten- 
tials  and  others.  In  fact,  it  has  been  treated  by  modern 
scholars  in  a  very  inadequate  manner,  entirely  dispropor¬ 
tionate  to  its  importance.  This  penitential,  the  Excerpta 
quaedmn  de  libro  Dcividis,  may  represent  extracts  from  a 
larger  penitential  by  him;  and  is  generally  A  ascribed  to  St. 
David  of  Menevia,  with  a  date  somewhere  between  A.  D. 
550-600.  In  addition  to  influencing  the  Collectio  Hiber- 
nensis  and  the  Celtic  penitentials,  it  was  borrowed  from  by 
the  penitentials  of  Theodore,  of  Bede  and  of  Gildas.5  Its 
direct,  practical  influence  on  the  prescribing  of  penances  was, 
doubtless,  very  considerable,  in  view  of  the  very  great  repu¬ 
tation  and  influence  of  St.  David  and  of  the  fact  that,  so  far 
as  we  now  know,  the  penitential  ascribed  to  him  is  the  only 
one  extant  that  was  used  in  the  early  Welsh  Church. 

The  Penitential  of  Gildas,6  of  a  date  about  A.  D.  560, 
was  probably  written  in  Brittany  and  chiefly  used  on  the 

1  See  the  parallels  in  the  editions  of  Wasserschleben. 

2  Vide  Wasserschleben  104. 

3  From  the  Codex  Paris.,  no.  3186,  fol.  282-283,  used  by  Martene, 
Thesaurus  Novus,  IV,  9-10;  from  the  posthumous  works  of  Knust,  by 
Wasserschleben,  101-102,  from  which  it  has  been  taken  by  Moran,  P.  F., 
Essays  on  .  .  .  the  Early  Irish  Church  (Dublin,  1864),  267-268  (in 
part);  H.  and  S.,  Ill,  118-120;  Schmitz.  I,  492-493 ;  Williams,  Gildas, 
II,  286-287;  and  Watkins,  op.  cit.,  588-589  and  605-606. 

4  J  idc  the  opp.  citt.,  supra;  cf.  also  an  ascription  to  Gildas  by  Brad¬ 
shaw,  rejected  by  others  and  discussed,  with  objections,  by  Williams, 
Gildas,  loc.  cit. 

5  For  these  parallels,  vide  Wasserschleben,  101-102. 

6  In  the  same  MS.  which  contains  that  of  David.  The  Penitential  of 


395]  HISTORICAL  AND  CRITICAL  INTRODUCTION  37 

Continent,  but  deserves  some  attention  because  of  the  espec¬ 
ially  prominent  position  and  influence  of  Gildas  among  the 
Welsh  clergy  and  on  the  early  British  Church  in  general. 
It  possesses  even  greater  significance  for  us  for  the  somewhat 
extensive  citations  from  it  in  the  compilations  by  Theodore, 
Egbert,  Bede,  the  pseudo-Cummean,  the  pseudo- Roman 
penitentials,  and  the  late  P  oenitentiale  XXXV.  C apitulorum* 
Like  the  Penitential  of  David  and  that  of  Vinnian,  it  ha9 
the  severe 2  penances  usually  characteristic  of  the  Celtic 
penitentials. 

SECT.  8.  THE  IRISH  PENITENTIALS  AND  PENITENTIAL 

CANONS 

These  compilations,  more  than  any  others,3  perhaps, 
furnished  models  for  the  English  group,  as  well  as  being 
extensively  followed  on  the  Continent,  in  individual  cases. 

Gildas  has  been  edited  by  Martene,  op.  cit.,  IV,  7-8,  and  Wasserschleben, 
105-108;  and  reprinted  by  H.  and  S.,  I,  113-115,  and  in  Schmitz,  I,  495- 
497;  also  in  Williams,  Gildas,  II,  passim.  Cf.  Mommsen,  in  MGH., 
And.  citron,  min..  Ill,  89-90,  and  the  critical  notes  in  pp.  11  et  seq.  On 
the  authorship  cf.,  also,  Wasserschleben,  Irische  Kanonensammlung , 
lxxiii,  and  Bradshaw,  Collected  Papers,  417  (Cambridge,  1889).  Wat¬ 
kins,  op.  cit.,  588,  has  portions  of  the  text,  after  H.  and  S. 

1  See  the  parallels  noted  in  Wasserschleben’s  edition. 

2  Examples  are  noted,  infra,  chap.  iii.  Watkins,  op.  cit.,  603,  regards 
the  Penitential  of  Gildas  as  a  record  of  British  discipline  in  the  first 
half  of  the  sixth  century  rather  than  as  an  innovation;  and  considers 
that  it  records  the  earliest  discipline  of  its  type. 

We  omit  detailed  discussion  of  the  interesting  Canoncs  Wallici,  which 
are  predominantly  secular  in  origin  and  apparently  had  no  influence 
upon  the  English  group.  They  are  significant,  however,  as  providing 
penances  that  were  enforced  by  secular  law.  Vide  Martene  and  Durand, 
op.  cit.,  IV,  13  et  seq.,  as  Excerpta  de  libris  Romanorum  et  Francorum; 
Wasserschleben,  124  et  seq.,  as  Canones  Wallici;  H.  and  S.,  I,  127-137, 
after  another  MS.;  Williams,  Gildas,  II,  286  et  seq.;  but  omitted  by 
Schmitz,  I  and  II. 

3  Except,  of  course,  the  conciliar  decrees  and  other  sources  for  the 
penitentials  discussed  supra ,  sect.  5. 


ENGLISH  PENITENTIAL  DISCIPLINE 


38 


[396 


It  ig  also  probable  that  they  powerfully  influenced  the  eccle¬ 
siastical,  moral,  and  legal  life  of  the  Irish.  The  chief  col¬ 
lections  of  Irish  penitential  canons  include  decisions  attri¬ 
buted  to  early  Irish  synods  and  the  penitential  code  ascribed 
to  Vinnian  or  Finnian.1  These  and  other  penitential  de¬ 
cisions  which  may  have  been  associated  with  the  acts  of 
Irish  saints,2  developed  great  significance  because,  as  in  Eng¬ 
land,3  the  performance  of  penance  for  certain  crimes  was 
required  and  enforced  by  the  secular'4  laws. 

Aside  from  the  influential  canons  on  penance  attributed  by 
some  to  synods  under  St.  Patrick  5  and  possessing  no  known 
significance  for  the  English  group,  the  collection  called  Can- 
ones  Hibernenses  6  exerted  a  very  strong  influence  upon  the 
English  penitentials,  as  well  as  upon  the  administration  of 
penance  in  Ireland.  These  canons  7  are  divided  by  Wasser- 


1  The  so-called  Penitential  of  Adamnan  is  omitted,  as  it  deals  almost 
wholly  with  penances  for  violating  taboo  on  the  “  unclean.” 

1  Vide  infra,  chap,  iii,  for  references  in  the  Vitae. 

*  Vide  infra,  chap,  v;  and  cf.  supra,  for  similar  laws  among  the  Welsh. 

4  See  the  Senchus  Mor,  ed.  W.  N.  Hancock  and  A.  G.  Richey,  Ancient 
Laws  of  Ireland  (6  vols.,  Dublin,  1865-1901),  II,  7e,  31;  III,  35,  107. 
Previous  writers  on  penance  have  overlooked  these. 

5  Published  with  the  Irish  penitentials  in  Wasserschleben,  7-8;  Schmitz, 
I,  267;  cf.  H.  and  :S.,  II,  328-330.  For  the  controversy  over  their 
genuineness:  Bury,  Life  of  St.  Patrick  (London,  1905)  ;  H.  and  S.,  loc. 
cit.;  Todd,  St.  Patrick  (Dublin,  1864),  486-488.  Some  decisions  attrib¬ 
uted  to  St.  Patrick  are  also  found  in  the  latter  part  of  the  “  Old  Irish 
Treatise  De  Arreis,”  edited  by  Kuno  Meyer,  in  Rev.  Celtique,  XV, 

(1894). 

‘The  text  is  in  Wasserschleben,  136  ct  seq.  in  Latin;  cf.  the  similar 
“Old-Irish  Treatise  De  Arreis,”  edited  by  Kuno  Meyer,  in  Rev.  Celtique, 
XV  (1894).  For  comments:  Wasserschleben,  48,  289,  and  his  "  V or- 
rcde;”  Kuno  Meyer,  loc.  cit.;  Wasserschleben,  Irischc  Kanonensamtn- 
lung,  210  and  passim;  and  Sagmitller,  KR.,  I,  152  and  note  2,  with 
references  on  the  CoUectio  Hiberncnsis,  which  used  these  canons. 

1  Titles  I  and  II  are  in  Martenc,  op.  cit.,  loc.  cit.;  Wasserschleben, 
136-138;  and  Moran,  Early  Irish  Church,  271  (in  part),  after  Wasser¬ 
schleben.  Title  III  is  in  Martene  and  Durand,  op.  cit.,  IV,  6;  Wasser- 


397]  HISTORICAL  AND  CRITICAL  INTRODUCTION  39 

schleben  into  six  titles :  Title  I.  De  Disputatione  Hibernensis 
Sinodi  et  Gregorii  Nasasene  Sermo  de  Innumeralibus  Pec- 
catis ;  Title  II.  De  Arreis  or,  in  another  manuscript,  Canones 
senodi  Hiberniae  et  Gregorius  N azasenus ;  Title  III.  Sy  nodus 
Hibernensis  Decrevit;  Title  IV.  De  Jectione,  possibly  con¬ 
cerned  with  evictions.  Neither  Titles  V  or  VI  have  any 
significance  for  our  subject.  The  canons  are  of  great  anti¬ 
quity,  being  found  in  a  manuscript  of  the  seventh  or  eighth 
century,  possibly  from  earlier  sources. 

In  contrast  to  the  usually  severe  penances  1  of  Title  I,  the 
canons  of  Title  II  are  chiefly  devoted  to  detailed  prescrip¬ 
tions  of  commutations  and  redemptions.2  Title  III  con¬ 
tains  penalties  for  various  injuries  to  clerics,  in  terms  of 
commutations 3  or,  ‘sometimes,  of  corporal  punishment. 
Title  IV  requires  money  compensations  for  various  other 
offences.4 

Of  all  these  groups  of  Irish  canons  Title  II.  De  Arreis  or 
Concerning  Commutations  is  most  interesting  for  our  field 
because  of  its  influence  upon  the  Penitential  of  Theodore.5 

schleben,  140-141 ;  Moran,  op.  cit.,  272;  and  partly  in  Seebohm,  Tribal 
Custom,  103,  comparing  it  with  secular  customs.  Critical  comments  are 
in  Wasserschleben,  7-8  and  282,  and  in  his  Irische  Kanonensammlung ; 
Bellesheim,  op.  cit.,  I,  191,  with  good  bibliography,  and  in  his  article  in 
AKKR.,  LIV,  467;  also  supra,  under  St.  Patrick.  Title  IV  is  in  Wasser¬ 
schleben,  141-142;  Moran,  op.  cit.,  272-273;  and  partly  in  Seebohm,  op. 
cit.,  103,  comparing  with  secular  sources.  Title  V  is  in  Mansi,  op.  cit., 
XII,  142;  Wasserschleben,  142-143;  and  Moran,  op.  cit.,  273,  after 
Wasserschleben.  Title  VI  is  in  Martene,  op.  cit.,  IV,  11  et  seq.;  Wasser¬ 
schleben,  143-144;  and  partly  in  Moran,  op.  cit.,  273-274,  after  Wasser¬ 
schleben. 

1  See,  especially,  cans,  i-iii,  v-vi,  xii-xxi,  xxiii-xxvii. 

*  Details  are  given  infra,  in  chap.  iii. 

3  Cf.  Seebohm,  Tribal  Custom,  101-103,  after  Wasserschleben. 

4  Watkins,  op.  cit.,  omits  the  Canones  Hibernenses. 

5  Cf.  infra,  chap.  iv.  For  an  interesting  and  valuable  discussion  of  the 
relations  of  penitential  and  secular  codes  and  for  the  money  values  of 
commutations  in  slaves,  etc.,  vide  iSeebohm,  op.  cit.,  100  et  seq. 


40 


ENGLISH  PENITENTIAL  DISCIPLINE 


[398 

It  seems  likely  that  these  detailed  provisions  for  commuta¬ 
tions  or  substitution  for  penance  were  of  considerable  ef¬ 
fect  in  supplanting  the  severe  system  of  the  Penitential  of 
Vinnian  with  very  lax  commutations  and  redemptions. 
Part  of  these  canons  are  found,  with  other  commutations 
and  quaint  penances,  in  an  old-Irish  treatise  On  Commuta¬ 
tions,1  of  an  origin  that  is  probably  not  later  than  the  eighth 
century. 

The  Penitential  of  Vinnian  or  Vinniaus,  however,  de¬ 
serves  most  attention  because  of  its  important  connections 
with  the  English  and  other  penitentials.  This  penitential 
is  f  rom  sources 2  that  are  obscure  in  general,  though  it 
uses  the  Bible  and,  possibly,  the  canons  of  Patrick  3  and  the 
writings  of  Cassian.4  It  has  been  ascribed  to  a  certain  Vin¬ 
niaus,  Vinnian,  Finnian  or  Vennian,  whose  exact  identity 
has  not  been  more  definitely  established  than  to  suppose  that 

1  Published-,  with  comments,  by  Kuno  Meyer,  in  Rev.  Celt.,  XV,  4851 
et  scq.,  with  old-Irish  text  and  English  translation.  Meyer  assigns  it  to 
the  Old-Irish  Period,  with  date  as  above.  He  edits  it  from  the  well- 
known  Bodleian  Codex  Rawlinson  B.,  512,  fol.  42b.,  and  thinks  it  is 
after  an  old-Irish  original  which  is  not  extant. 

1  For  editions  and  sources:  Wasserschleben,  108-119;  Schmitz,  I,  497 
et  scq.;  also  cf.  Moran,  op.  cit.,  “Appendix” — the  parts  on  ceremonies. 
Cf.,  also,  Wasserschleben,  10-11  and  117,  on  the  great  variations  in  the 
MSS.  used  by  him.  The  division  by  Schmitz,  I,  499  into  two  parts — one 
for  the  clergy  and  one  for  the  laity,  in  that  order — omits  the  general 
canons  i-iv,  ix  and  xx-xxii ;  and  he  includes,  among  those  intended  for 
the  clergy,  canon  vii,  which  is  plainly  for  the  laity.  For  older  editions, 
ziide  Martene,  op.  cit.,  IV,  1  et  seq.,  and  D’Achery,  Spicilegiutn,  I,  491. 

3  Vide  supra,  this  section,  under  Patrick. 

AVide  supra,  on  the  sources  for  the  Penitentials;  Wasserschleben, 
loc.  cit.;  and  infra,  chap,  iii,  under  the  Octoade.  Vinnian’s  references 
to  “  the  opinion  of  some  very  learned  men  ”  as  his  authorities  is  inter¬ 
preted  by  Watkins,  op.  cit.,  609  et  scq.,  as  probably  meaning  the  British 
teachers,  SS.  David  and  Gildas. 


4i 


399]  HISTORICAL  and  critical  introduction 

he  was  either  Finnian  of  Clonard  1  or  he  of  Moville,2  of  a 
date  about  A.  D.  530  or  540;  though  either  ascription  would 
connote  a  use  of  the  Penitential  in  Ireland  that  was  prob¬ 
ably  very  extensive  and  influential.3  Aside  from  the  fact 
that  lit  was  extensively  followed  by  various  Continental 
penitentials,4  the  Penitential  of  Vinnian  was  much  used  as 
a  source  by  those  of  Theodore,  Bede  and  Egbert.5  Of  all 
the  Irish  penitential  material  it  was  probably  most  closely 
related  textualiy  to  the  English  group. 

1  His  authorship  is  asserted  by  Wasserschleben,  10-11,  without  pro¬ 
ducing  evidence;  Baring-Gould,  op.  cit.,  Ill,  35,  123,  without  other 
reason  than  the  fact  that  Gildas  and  Finnian  of  Clonard  had  met  in 
Wales,  and  without  references  ;  and  Vering,  in  KLex.,  article  on  “  Buss- 
bilchcr,”  apparently  following  Wasserschleben. 

i  For  the  authorship  by  Finnian  of  Moville:  Schmitz,  I,  498-499;  Belle- 
sheim,  op.  cit.,  I,  S3,  after  Schmitz ;  Moran,  op.  cit.,  137,  after  Colgan 
( Acta  Sanctorum,  189-200)  ;  Seebass,  in  ZKG.,  XIV,  435  ct  scq.,  especi¬ 
ally  437,  retracting  his  former  argument  for  Finnian  of  Clonard  stated 
in  his  dissertation  on  Columban’s  Penitential  (1883)  ;  also  see  the  excel¬ 
lent  discussion  pro  and  con  by  Williams,  Gildas,  II,  65  and  178. 

3  Because  of  the  very  great  and  well-known  influence  of  both  of  them. 

4  Compare  the  parallels  between  the  Penitential  of  Vinnian  and  those 
of  Columban,  the  pseudo-Cummean,  the  Penitential  of  Merseburg,  and 
others  noted  in  Wasserschleben’s  edition  of  that  of  Vinnian. 

5  Vide  infra,  chap,  iv,  on  the  sources  for  the  Penitentials  of  Theodore, 
Bede  and  Egbert. 


CHAPTER  II 


The  General  Operation  of  Penance 

To  appreciate  fully  the  operation  and  influence  of  penance 
in  Great  Britain  in  the  pre-Norman  period,  it  will  now  be 
necessary  to  discuss  the  operation  of  penance  in  general. 
Many  1  general  regulations  of  penance,  as  is  well  known 
to  students  in  the  held,  were  applicable  everywhere  to  all 
Roman  Catholics  2  and  serve  to  connect  the  local  adminis¬ 
tration  of  penance  with  main  stream.3  Such  a  discussion 
will  also  serve  as  the  basis  for  a  later,  comparative  study 
of  penitentials  and  penitential  customs'4  in  Great  Britain 
and  on  the  Continent,  as  well  as  of  their  reciprocal  rela¬ 
tions.5  It  will  also  furnish  background  for  a  better  under- 

1  Many  penitential  provisions  on  the  Continent  served  as  norms  for 
the  British  Isles,  though  the  latter  differed,  to  some  extent,  in  some 
details.  It  is,  however,  increasingly  the  opinion  of  scholars  that  the 
details  of  the  administration  of  penance  varied,  in  time  and  place,  more 
than  former  scholars  supposed.  Vide  infra,  chs.  ii,  iii,  particularly  on 
public  penance. 

2  Greek  practice  differed  in  some  important  ways  from  Roman  Cath¬ 
olic  penance ;  vide  infra,  chs.  ii,  iii,  on  public  penance,  for  example. 

3  This  chapter  does  not  claim  originality,  but  seeks  to  connect  the 
conclusions  of  present  authorities  with  the  main  thesis.  I  feel,  how¬ 
ever,  that  it  may  clarify  certain  important  phases  of  public  penance 
and  commutations. 

4  The  silence  of  individual  sources  on  penances  may  sometimes  be 
supplemented  by  evidence  from  contemporary  and  sometimes  earlier 
sources,  but  this  must  be  done  cautiously.  For  the  developmental  rela¬ 
tions  of  English  and  Continental  penitentials,  infra,  chaps,  iv,  vi. 

5  In  such  important  matters  as  commutations,  public  penance,  etc., 
vide  infra,  chaps,  ii,  iii,  vi. 

42 


[400 


43 


40I]  THE  GENERAL  OPERATION  OF  PENANCE 

standing  of  technical  phrases  and  customs  that  were  com¬ 
mon  to  all  penitentials. 

SECT.  I.  THE  GENERAL  NATURE  AND  KINDS  OF  PENANCE 

The  theories  as  to  the  nature,  purpose  and  forms  of 
penance  are  familiar  to  students  of  ecclesiastical  institu¬ 
tions.  The  two  chief  theories — viz.  that  penance  was 
medicinal  and  that  it  was  punitive — apparently  represent  dif¬ 
ferent  phases  of  penance,  at  least  so  far  as  its  practical 
effects  on  the  penitent  are  concerned.  From  the  require¬ 
ment  then,  by  secular  1  laws,  of  penance  for  crimes  against 
them  or  for  other  offences,  it  is  evident  that  the  punitive 
phase  of  penance  was  stressed  by  the  secular  authorities  in 
the  pre-Norman  period.  Another  well-known  division  of 
the  kinds  of  penance  was  into  three  2  forms — “  canonical,” 
“solemn”  and  “public;”  but,  for  our  purposes,  we  shall 
employ  a  two-fold  division — that  into  private  and  public 
penance. 

SECT.  2.  THE  IMPORTANCE  OF  PUBLIC  PENANCE 

The  connection  of  public  penance  with  our  subject  is 
vitally  important  for  textual  and  practical  reasons.  Its  ex- 

1  Vide  infra,  chap,  v,  for  such  laws  among  the  English.  As  illustra¬ 
tions  of  the  punitive  aspect  of  penance,  see,  also,  the  ancient  Irish 
canons  ascribed  to  St.  Patrickf?),  in  Wasserschleben,  141 ;  the  Canones 
Wallici,  in  Wasserschleben,  124;  Sin.  Viet.,  can.  iv,  in  Wasserschleben. 
104;  Concil.  Berghamstedens..  capp.  14-15,  in  H.  and  S.,  Ill,  233-236  ( cf . 
Laws  of  Wihtred,  in  Liebermann,  Gesetze)  ;  P.  Th.,  can.  iv,  sect.  5! 
Can.  Greg.,  can.  cviii;  Conf.  Ps.  Egb..  can.  xxiii;  the  citations  from  the 
Penitentials  being  to  Wasserschleben’s  edition.  Also  see  the  Frankish 
Eccles.  Itists.,  in  Thorpe,  Ancient  Laws,  etc.,  II,  291-299;  and  the  Law 
of  the  Northumbrian  Priests,  in  Liebermann’s  edition.  Cf.  infra,  chap, 
vi,  for  the  influence  of  the  Penitentials  in  supplementing  the  secular 
laws  with  much-needed  assistance. 

*  For  the  familiar  forms  of  penance,  in  addition  to  the  articles  in  the 
encyclopedias,  etc.,  and  the  opp.  citt.,  infra,  passim,  vide  Schmitz,  I,  11-36, 
and  Lea,  op.  cit.,  I,  18  et  seq.,  and  II,  107,  412. 


44 


ENGLISH  PENITENTIAL  DISCIPLINE 


[402 


istence  in  England  1  for  at  least  part  of  the  period  from 
Theodore  forward  may  not  be  so  lightly  denied  as  has  been 
usually  the  case.  Moreover,  certain  obscure  phrases  2  in 
the  English  penitentials  may  be  better  understood  by  refer¬ 
ence  to  this  institution  or  parts  of  it. 

The  connection  between  public  penance  on  the  Continent 
and  that  in  England  is  closer  than  has  been  supposed.  This 
is  especially  evident  from  the  close  textual  relationship  be¬ 
tween  penitentials  of  Continental  and  those  of  English  origin 
in  the  latter  part  of  the  period.3  It  is  significant,  too, 
that  this  later  period  of  English  penitentials,  with  increasing 
force,  corresponds  to  that  which  gives  us  fullest  evidence  of 
the  existence  of  public  penance  in  England,  at  least  in  part. 
If,  as  seems  probable,  there  was  borrowing  then  by  English 
from  Continental  penitentials,  the  comparison  of  public  pen¬ 
ance  as  it  may  have  existed  in  the  two  places  may  shed  light 
upon  the  nature  of  such  borrowing. 

But  there  remain  still  more  important  reasons  for  in¬ 
vestigating  the  existence  and  nature  of  public  penance  in 
England  in  the  period  of  the  penitentials  selected.  In  par¬ 
ticular,  the  performance  of  it,  if  required,  would  materially 
increase  the  severity  of  the  ecclesiastical  punishment  and 
therefore  its  effect  upon  the  offender  and  upon  the  com¬ 
munity.  To  the  natural  notoriety  gained  by  conviction  in  a 
secular  court  there  would  thus  be  added  public  humiliation  be¬ 
fore  the  congregation.  Thus  the  performance  of  public  pen¬ 
ance  might  serve  as  an  important  part  o>f  a  bigger  process,  of 
which  one  purpose  was  to  subject  the  criminal  effectively! 

1  Vide  infra,  chap.  iii. 

*  For  such  phrases,  infra,  chap,  iii ;  cf.  chap,  iv,  for  the  English  peni¬ 
tentials  of  the  9th  and  10th  centuries. 

*  There  is  abundant  evidence,  as  will  be  seen  in  chap,  iv,  that  certain 
Continental  penitentials,  compiled  when  public  penance  was  very  promi¬ 
nent,  strongly  influenced  late  penitentials  in  England,  in  the  9th  and 
10th  centuries,  e.  g.  Ps.  Egb.,  Ps.  Can .  Edg.,  etc. 


45 


403]  THE  GENERAL  operation  of  penance 

to  adverse  public  opinion ;  but  it  would  also  serve,  by  public 
examples,  to  educate  the  community  to  feel  the  heinousness 
of  crimes.  In  both  of  these  results  public  penance  might, 
therefore,  supply  a  valuable  agency  through  which  the  peni¬ 
tential  discipline  might  supplement  the  work  of  the  secular/ 

When  put  into  practice  in  the  Middle  Ages,  public  penance 
was  required  particularly  for  publicly  known  sins  of  a 
heinous  character:  chiefly  homicide,  rape,  usury,  fornica¬ 
tion,  adultery",  perjury,  arson,  robbery,  soothsaying,  magic, 
incest  and  marriage  within  the  prohibited  degrees.  It  may 
also  have  been  required  for  heinous  offences  that  were  not 
publicly  known,1 2  but  this  has  been  denied  by  many  prominent 
scholars. 

The  effect  of  public  penance  upon  the  penitent  and  his 
community  would,  of  course,  vary  according  to  the  number, 
severity  and  humiliating  nature  of  penitential  acts  of  a 
public  character  prescribed  in  it  in  any  given  period.  Re¬ 
cent  investigation  has  shown  that  this  number  probably 
varied  3  at  different  periods  and  in  different  localities.  It 

1  For  the  weaknesses  of  the  secular  law,  necessitating  such  aid,  vide 
infra,  chap.  v.  The  period  in  which  public  penance  may  have  enjoyed 
its  fullest  use — viz.,  the  ninth  and  tenth  centuries — is  also  that  in  which 
the  secular  government  was  endeavoring  to  educate  the  public  to  regard 
crimes  as  offences  against  the  community.  On  this,  infra,  chap,  v,  on 
the  subject  “the  king’s  peace”;  and  cf.  chap,  iii  for  further  details  on 
penance  in  England. 

2  See  the  summary  of  this  question  for  the  first  six  centuries  in 
Rauschen,  Eucharistie  und  Busssakr ament  (Freiburg,  1908,  and  Eng. 
transl.,  1913,  cited  hereafter  as  “Rauschen,  Buszsakrament”),  134,  with 
references.  Cf.  P.  A.  Kirsch,  Zur  Geschichte  der  kath.  Beichte,  71  et 
seq.;  Binterim,  Denkwurdigkciten,  V,  ii,  276  et  scq.;  Funk,  KG.,  293- 
294;  Schmitz,  II,  98;  Lea,  op.  cit.,  I,  19,  183,  and  II,  73-741  and  more 
recent  discussion  by  M.  J.  O’Donnell,  Penance  in  the  Early  Church  (re¬ 
vised  and  enlarged  edition,  Dublin,  1908).  Also  cf.  infra,  chap,  iii,  on 
public  penance  as  prescribed  in  the  Dialogue  of  Egbert  of  York. 

3  An  interesting  controversy  has  raged  over  the  existence  and  extent 
of  public  penance  in  the  Western  Church  in  the  period  of  the  Peniten- 


ENGLISH  PENITENTIAL  DISCIPLINE 


46 


[404 


wiiill  'be  necessary,  therefore,  to  describe  briefly  the  individual 
acts  of  public  penance  in  their  completest  forms.  Then,  by 
comparing  the  canons  of  a  given  penitential  or  other  source 
with  the  complete  system  of  public  penance,  we  can  better 
try  to  determine  whether  or  not  public  penance  is  found  in 
such  a  source. 

In  its  completest  form,  public  penance  was  first  publicly 
imposed  on  the  penitent  by  the  bishop,  by  relegating  the 
former  to  the  penitents,  who  were  divided  into  classes  ac¬ 
cording  to  the  disabilities  and  penitential  acts  required. 
After  a  definitely  prescribed  term  of  penance,  in  the  class  or 
classes  designated  at  imposition  or  thereafter,  the  penitent 
was  at  last  formally  absolved  and  publicly  reconciled.,  'Each 
of  these  acts  will  now  be  briefly  described. 

The  ceremonies  of  imposing  penance  in  the  early  Church 
are  somewhat  difficult  to  determine 1  in  detail ;  but  they 
later  gained  great  annual  solemnity  in  the  places  and  during 


tials — the  fifth  to  the  eleventh  centuries.  See  an  excellent  survey  of 
the  new  and  the  old  views  by  Koch,  in  Historisches  Jahrbuch  ( Gdrres - 
Gesellschaft,  1897,  1900),  and  in  Th.  Q.  (1903,  1904),  especially  the  first 
article,  pp.  481-482.  The  traditional  view  holds  that  the  penitential 
stations  were  native  in  the  West  from  the  beginning.  Opposing  this, 
several  more  recent  writers  consider  that  the  penitential  stations  were 
introduced  spasmodically  from  the  East  by  reformers  and  that  public 
penance  soon  declined  and  was  never  continuous  in  existence  in  the 
Western  Church. 

For  the  traditional  view :  Sirmond,  Historia  poenitentiae  publicae 
(Paris,  1683),  especially  capp.  5,  10;  Frank,  Buszdisciplin,  196  et  seq.; 
Schmitz,  I,  34-35;  Watkins,  op.  cit.,  530,  583;  Ludwig,  in  AKKR. 
(1903),  PP-  219  et  seq. 

Contra:  The  articles  by  Koch,  cited  supra;  Funk,  Kirchcngcschicht- 
Uche  Abhandlungen,  I  (1899),  196,  384  et  seq.,  and  in  KLcx.,  II,  .s.  v. 
“Basse”;  and  his  article  in  Th.  Q.  (1886),  363  et  seq.;  a  modified  ac¬ 
ceptance  by  Hergenrother,  KG.  (1902),  I,  315,  418.  Cf.  the  previous 
views  of  Binterim,  op.  cit.,  V,  ii,  371  et  seq.  and  368  et  seq.  For  others, 
pro  and  con,  vide  Jahresberichte,  passim,  especially  IV  (1902),  221. 

1  Lea,  op.  cit.,  I,  33-34;  Schmitz,  I,  34  et  seq.;  Watkins,  op.  cit., 
especially  vol.  i,  for  excellent  texts  and  comments  on  the  authorities. 


4°5]  THE  GENERAL  OPERATION  OF  PENANCE  47 

the  time  that  public  penance  was  practiced.1  On  the  date  2 
of  formal,  solemn  imposition,3  all  penitents  and  those  about 
to  become  penitents  were  commanded  to  present  themselves 
to  the  bishop,  'before  the  cathedral  door,  in  front  of  the 
porch.  After  the  penitents  had  been  led  'into  the  church, 
the  bishop  and  the  clergy  prostrated  themselves,  and,  with 
tears,  sang  the  seven  penitential  psalms.  After  this,  the 
penitents  received  the  laying-on  of  the  hands  from  the 
bishop.  The  latter  then  sprinkled  them  with  holy  water, 
cast  ashes  over  them,  covered  thei-r  heads  with  sackcloth  and, 
with  sighs  and  groans,  announced  that  they  were  to  be 
ejected  from  the  church.  He  then  ordered  the  clergy  to 
drive  them  out ;  and,  with  chanting,  this  was  done.4 

According  to  the  traditional  accounts  of  public  penance, 
the  penitents  were  divided  early  into  four  parts  or  stations, 
sometimes  callled  grades  or  classes.5  The  first  of  these, 

1  For  an  excellent  discussion  of  the  geographical  and  chronological 
distribution  of  public  penance,  vide  Watkins,  op.  cit.,  especially  vol.  ii, 
passim;  also  infra,  on  private  penance. 

2  Vide  Watkins,  op.  cit.,  580-581,  after  Wilson,  Gelasian  Sacramentary 
(Oxford,  1894),  15;  Funk,  in  KLex.,  II,  1578;  Binterim,  Denkwurdig- 
keitcn,  V,  ii,  233  et  seq.,  294  ct  seq.  The  day  was  usually  Ash  Wednes¬ 
day. 

5  The  bishop  imposed  his  hands  upon  their  heads  as  a  symbol ;  vide 
Watkins,  op.  cit.,  581,  583,  after  Regino  of  Priim  and  the  Pontificate 
Romanum;  the  Pontifical  of  Egbert  of  York,  infra,  chap,  iii;  and 
supra,  op.  citt.  The  penitents  were  usually  clad  “  in  sorbid  vest¬ 
ments  ”  or  in  sackcloth;  vide  Watkins,  loc.  cit.  In  Spain  the  date  was 
usually  Good  Friday;  vide  Watkins,  op.  cit.,  585,  after  the  Mozarabic 
Breviary. 

*  Vide  the  opp.  citt.,  supra ;  also  Lea,  op.  cit.,  I,  33-34,  and  Watkins, 
op.  cit;,  581-582. 

5  See  the  standard  accounts  in  Cath.  Ency.,  articles  by  Hanna  and 
Boudinhon  on  “  Penance  ”  and  “  Penitential  Canons  ” ;  Funk,  in  KLex., 
II,  “  Busse  ” ;  Herzog-Hauck,  s.  v.  “  Bericht  ”,  “  Busse  ”,  “  Buszdisciplin  ”, 
“  Bussbiicher,”  etc.;  the  works  on  the  controversy  cited,  supra;  Wat¬ 
kins,  loc.  cit.\  Schmitz,  I,  19  et  seq.,  51  et  seq.,  63  et  seq.;  and  Lea,  op. 
ctt.,  I,  24  et  seq. 


ENGLISH  PENITENTIAL  DISCIPLINE 


48 


[406 


( 1 )  ithe  “  weepers  ”  or  dentes,  were  really  candidates  for 
penance,  great  sinners  who  had  to  await  their  admission 
from  outside  the  church.  On  being  admitted  they  became 

(2)  “hearers,”  audientes,  apparently  present  at  divine  ser¬ 
vice  until  after  the  lessons  and  the  homily.  After  a  certain 
time  in  that  station,  varying  with  the  offence,  the  penitents 
passed  into  another  grade  (3)  the  “  prostrated  ”  or  sub- 
strati,  so  called  because  they  lay  prostrate  while  the  bishop, 
before  excluding  them,  prayed  over  them  and  imposed  his 
hands  on  them.  Finally,  (4)  the  consistentes,  (“  standers 
with”),  were  apparently  present  during  the  whole  service 
but  did  not  receive  communion.  Penance  ended,  if  satis¬ 
factorily  performed,  with  full  admission  to  communion  and 
complete  equality  with  the  faithful;  though,  sometimes, 
penitents  were  admitted  to  communion  before  the  comple¬ 
tion  of  penance.  The  time  for  penance  in  the  stations  might 
amount  to  three,  five,  ten,  twelve,  or  fifteen  years  according 
to  the  gravity  of  the  sin  and  the  severity  of  the  penitential 
authority.1 

But  the  continuous  existence  of  public  penance,  at  least 
in  its  complete  form,  and  especially  of  the  penitential 
stations  on  the  Continent  from  the  fifth  to  the  ninth  cen¬ 
turies  is  doubtful.2  On  the  other  hand,  the  attempts  to  re¬ 
vive  public  penance  during  the  Carolingian  period  are  re¬ 
cognised,3  and  this  revival  may  have  exercised  a  profound 

1  Vide  supra.  Some  penitentials  were  severe,  some  moderate,  some 
lax;  vide  supra,  chap,  i,  and  infra,  chaps,  ii,  iii,  under  commutations. 

2  Vide  supra,  this  section,  for  evidence  and  references  on  the  contro¬ 
versy  over  public  penance  in  the  West. 

*  Vide  Lea,  op.  cit.,  I,  508;  II,  73  ct  seq.,  77  et  seq Lepicier,  op.  cit., 
235-236;  the  decrees  of  the  reform  councils  of  Chalons,  Tours,  Rheims, 
Arles,  Mainz  and  Aix-la-Chapelle,  summarized  in  Watkins,  op.  cit.,  700- 
707 ;  cf.  672-676  and  his  discussion  of  the  work  of  the  councils  of 
Treves  and  of  Paris;  the  acts  of  these  synods  in  Hefele,  op.  cit.,  especi¬ 
ally  vols.  iii  and  iv;  and  Schmitz,  I,  "  Einleitung  ”. 

For  numerous  detailed  enactments  by  great  secular  princes  requiring 


407]  THE  GENERAL  OPERATION  OF  PENANCE  49 

influence  upon  the  contemporary  system  of  penance  in  Eng¬ 
land.  This  is  very  probable  because  some  of  the  chief 
leaders  of  this  Continental  revival  compiled  penitentials  that 
were  closely  related  to  English  penitentials  of  the  ninth  and 
tenth  centuries,  sometimes  serving  as  sources  1  for  individual 
English  penitentials. 

Distinct  from  public  penance,  as  seen  in  the  penitential 
stations,  were  certain  other  acts  2  of  a  public  nature  often 
prescribed  for  grievous  sins.  Besides  private  penances, 
penitents  undertook  voluntarily  or  were  forced  by  authority  3 
to  wear  sombre  clothing;  submit  themselves  to  scourging; 
do  penance  on  pilgrimages  *  or  in  exile  or  in  a  monastery;  s 
and  were  sometimes  obliged  to  abandon  the  carrying  of 
arms 6  for  the  period  of  penance.  Even  imprisonment 7 
was  sometimes  used  for  heinous  or  recalcitrant  cases. 

public  penance:  Gieseler,  KG.,  II,  54,  note  25,  and  I,  324;  to  be  supple¬ 
mented  by  Lea,  op.  cit.,  II  84  et  seq.;  and  by  Watkins,  op.  cit.,  passim, 
whose  account,  however,  is  sketchy.  The  discussions  by  Funk,  in  KLex., 
II,  s.  v.  “  Busse”;  by  the  various  encyclopedias;  by  Lea,  op.  cit.,  74;  by 
Wasserschleben  and  by  Schmitz,  are  very  inadequate.  Of  particular 
value  are  the  articles  on  “  Sendgerichte  ”,  or  synodal  courts  in  Herzog- 
Hauck  and  by  Dove,  in  ZKR.,  XIV  and  XV;  Gieseler,  op.  cit.,  II,  54; 
and  Moeller,  Church  Hist.,  II,  114. 

1  Cf.,  especially,  P.  Halitgar  and  P.  Regino  with  Ps.  Can.  Edg.  and 
Ps.  P.  Egb.,  supra,  chap,  i,  and  infra,  chap.  iv. 

2  On  these  well-known  acts,  see  the  articles  on  “  Penance  ”  in  the  en¬ 
cyclopedias  of  religion,  theology,  etc. ;  and  the  various  works  cited  in 
this  section. 

3  Vide  supra,  this  section,  for  references  on  secular  laws  enforcing 
penance;  also  infra,  chap.  v.  Cf.  Watkins,  op.  cit.,  538  et  seq.  and  752 
et  seq.,  on  enforcement. 

*Vide  Funk,  in  KLex.,  II,  1577  et  seq.;  Schmitz,  I,  63,  150,  153,  275, 
29L  405.  and  II,  100,  320;  Lepicier,  op.  cit.,  241  et  seq. 

5  Vide  Schmitz,  I,  349,  351,  357,  362,  643,  and  II,  276,  365,  427,  489, 
553,  641 ;  Lepicier,  op.  cit.,  143  et  seq. 

*  Vide  Schmitz,  I,  507-508.  For  the  resentment  of  the  Germanic 
peoples  to  penitential  prescriptions  of  dress,  relinquishment  of  weapons, 
etc.,  vide  Moeller,  Church  Hist.,  II,  115. 

1  On  imprisonment:  Schmitz,  II,  47,  and  his  article  in  AKKR.  (1884)  ; 
Lea,  op.  cit.,  I,  20. 


50 


ENGLISH  PENITENTIAL  DISCIPLINE 


[408 

Penitents  of  whom  the  above  acts  were  required  might 
be  under  the  ban  of  excommunication.1  They  might  then 
also  be  placed  under  the  public  curse,  cut  off  from  all  social 
intercourse  with  other  Christians,  deprived  of  Christian 
burial,  or  practically  outlawed. 

SECT.  3.  PRIVATE  PENITENTIAL  ACTS 

Besides  penitential  acts  of  a  public  nature,  private  con¬ 
fession  2  and  penance  were  practiced  during  the  period  which 
saw  the  greatest  activity  in  compiling  penitentials,  from  the 
sixth  century  forward.  Various  forms  of  expiation  were 
used,  including  the  familiar  individual  self-denial,  self- 
torture,  fasting,  and  certain  forms  of  redemptions.  Among 
the  severe  forms  of  fasting  were  those  on  bread  and 
water;  or  without  flesh,  wine,  beer,  mead,3  and  the  like. 
The  periods  of  fasting  or  of  other  penances  naturally  varied 
according  to  the  offence;  sometimes  according  to  motive  or 
degree  of  the  offence  or  to  the  physical  condition  of  the 
penitent ;  4  or,  in  a  few  cases,  even  according  to  his  wealth.5 

In  the  first  period  it  is  probable  that  the  penitent  under  - 

1  On  excommunication:  Sagmtiller,  KR.,  I,  82,  201,  318,  337,  and  II, 
71,  73,  245,  348,  355,  439.  49b  and  passim.  Also  see,  for  England,  the 
laws  enforcing  penance  and  the  formulae  for  excommunication,  infra, 
chap.  v. 

s  For  the  theory  that  private  penance  and  private  reconciliation  became 
substituted  for  public  forms  first  through  the  Celtic  codes  of  monastic 
discipline  and  that  the  penitential  codes  were  the  means  of  spreading  the 
new  system,  vide  Watkins,  op.  cit.,  passim.  Cf.,  also,  Ldning,  KR.,  II, 
471-472;  and  Williams,  Gildas,  II,  178  and  note  1.  Catholic  scholars,  of 
course,  favor  a  Roman  origin  for  private  penance. 

s  Vide  Schmitz,  I,  232,  337,  348,  395,  435-436,  744,  and  the  texts  for 
the  Penitentials  in  the  standard!  editions  for  examples.  Also  see  Lea, 
op.  cit.,  II,  1 19;  and  Rauschen,  op.  cit.,  114,  137-138  and  151. 

*Vide  infra,  chaps,  ii,  iii,  under  commutations;  also  for  distinctions 
according  to  individual  penitentials,  whether  severe,  moderate  or  lax. 

5  Vide  infra,  chaps,  ii,  iii,  under  commutations.  Peculiarities  of  the 
Celtic  system  are  described  infra,  chap.  iii. 


5i 


409]  THE  GENERAL  operation  of  penance 

went  a  continuous  fast  for  a  prescribed  time,  with  the  ex¬ 
ception  of  Sundays  and  holy  days.  But,  since  the  eighth 
century,  the  penitential  fast  was  often  prescribed  for  a  de¬ 
finite  time  of  the  year  or  of  the  week,  especially  the  three 
quadrigesimae  or  quarantines  and  the  ferine  legitimae  or 
required  week-days.  The  three  quadrigesimae  or  quaran¬ 
tines  corresponded  to  the  three  principal  festivals  of  the 
year — 'Easter,  Christmas,  and  Pentecost — preceding  the  first 
two  but  following  Pentecost.  The  ferine  legitimae  were 
Monday,  Wednesday  and  Friday.1  Sometimes  especially 
severe  fastis — known  as  “  super positiones  ”  or  “  superimposi- 
tiones  ”  were  prescribed  for  especially  grave  cases  and  ap¬ 
parently  referred  to  fasting  beyond  the  regular  time — three 
o’clock  in  the  afternoon.2  In  addition  to  the  periods  men¬ 
tioned,  shorter  fasts  for  less  grievous  sins  were  the  “  tri- 
duana  ” — fasts  of  three  days,  and  the  “  septimana  ” — or 
fasts  of  seven  3  days.  Other  penalties  for  both  clergy  and 
laity  included  penance  in  a  cloister,'4  either  life-long  or  for 
a  shorter  period:  and,  possibly,  imprisonment,  at  least  for 
the  obstinate.5  1 

^Schmitz,  I,  150.  On  the  quadrigesimae:  Schmitz,  loc.  cit.,  and  65, 
162,  237,  577,  764,  with  many  references  in  the  Penitentials ;  Williams, 
Gildas,  II,  277  and  note  5  ;  and  infra,  under  penances  for  specific  offences, 
especially  in  chap,  vi,  for  examples.  On  the  feriae  legitimae:  Schmitz, 

I,  150,  237,  798.  Watkins,  op.  cit.,  604,  considers  that  the  superpositiones 
(or  super  imp  ositiones)  were  fasts  rigidly  observed  all  day. 

s  Vide  Schmitz,  I,  149,  230,  315,  755 ;  Williams,  loc.  cit.,  and  p.  276, 
note  3. 

3  Vide  Schmitz,  I,  148  et  seq.  For  earlier,  longer  terms :  Schmitz,  I, 
13,  and  Rauschen,  Buszsakr ament,  passim.  For  peculiar,  Irish  “  black 
fasts  ”,  infra,  chap.  iii.  See,  also,  the  works  on  food  prohibitions,  etc., 
supra,  chap,  i,  sects.  2-3;  and  Friedberg,  Aus  den  deutschen  Bussbiicher, 
16-19.  For  fasts  in  the  Anglo-Saxon  Laws,  vide  Liebermann,  Gesetse, 

II,  s.  v.  “  Fasten.” 

4  Vide  Schmitz,  I,  139  et  seq.,  156  et  seq.,  349,  35 1,  357,  362,  643,  797-798. 

5  Vide  Schmitz,  II,  47,  51,  52;  also  supra,  chap,  ii,  on  acts  of  a  public 
character,  for  further  references.  For  the  practice  among  the  Franks, 
during  the  reform  period  of  the  synodal  courts,  cf.  the  excellent  article 
by  Dove,  in  Herzog-Hauck. 


52 


ENGLISH  PENITENTIAL  DISCIPLINE 


[410 


SECT.  4.  COMMUTATIONS  AND  SUBSTITUTIONS 

Besides  the  above  penances,  provisions  were  made  for 
other  forms  of  expiation  by  penitential-surrogate,  commuta¬ 
tion,  redemption,  and  substitution  or  delegation.  Such  al¬ 
leviations  1  arose  originally  for  cases  in  which  the  perfor¬ 
mance  of  the  above  fasts  and  the  like  was  impossible  by 
reason  of  age,  occupation,  or  other  disability  of  the  penitent. 
Penitential  codes  sometimes  give  directions  as  to  the  number 
of  psalms  or  genuflections,  or  prostrations,  or  the  amount  of 
pilgrimage  or  of  money  allowed  as  equivalents  to  definite 
periods  of  fasting  of  various  degrees.2  Money  redemptions 
might  be  either  in  the  form  of  money  paid  directly  to  the 
church  for  use  in  good  works,3  or  by  alms  4 5  to  the  poor,  or 
sometimes  by  freeing  a  slave.3 

During  the  ninth  century,  the  allowing  of  commutations 

1  On  the  theory  underlying  commutations  and  “  good  works,”  vide 
Lepicier,  op.  cit.,  236  et  seq.,  and  the  various  'Catholic  and  Protestant 
encyclopedias.  For  details  concerning  the  British  Isles,  infra,  chap.  iii. 

On  commutations  in  the  Penitentials :  Schmitz,  I,  144  et  seq.,  and 
under  the  texts  of  the  codes  in  the  standard  editions,  especially  P.  Merse¬ 
burg,  can.  xliii;  P.  Eccles.  Genu.,  cans,  ii-v,  viii,  xx,  xi,  xv-xvi,  xviii, 
xxxi ;  and  infra,  chap.  iii.  On  the  kinds  of  commutations :  Lepicier, 
op.  cit.,  222-233,  236-273;  'Lea,  op.  cit.,  II,  150  et  seq.,  chap,  xviii,  59-64, 
146-159,  I,  13;  Dove,  in  ZKR.,  XIV,  for  commutation  in  the  synodal 
courts.  On  commutations  as  related  to  the  Penitentials,  see  also  Brat, 
Les  litres  penitentiaux  et  la  penitence  tariff ec  (Brignals,  1910). 

*  Schmitz,  I,  loc.  cit.,  and  other  references  supra.  On  genuflections: 
Schmitz,  I,  145,  152;  cf.  infra,  chap.  iii.  On  psalms  instead  of  penance: 
Schmitz,  I,  144-145,  148,  237;  infra,  chap,  iii;  and  Lepicier,  op.  cit.,  238 
et  seq.  On  redemptions  for  money:  Schmitz,  I,  144  et  seq.,  223,  563, 
572,  586,  605,  613 ;  and  infra,  chap.  iii.  On  restitution  and  other  forms, 
infra,  chaps,  iii  and  vi. 

*  Vide  supra. 

*  Vide  Schmitz,  I,  144,  148,  2 37,  326,  488;  and  infra,  chap.  iii. 

5  Or  a  serf,  after  serfdom  supplanted  slavery:  Schmitz,  I,  277  et  seq., 
404,  499.  507,  577,  694.  This  form  particularly  characterized  the  Celtic 
penitentials;  cf.  infra,  chap.  iii. 


53 


4II]  THE  GENERAL  OPERATION  OF  PENANCE 

and  redemptions  became  so  extensive  that  numerous  reform 
councils  protested  against  the  lax  extension  of  commuta¬ 
tions  by  numerous  arbitrary  penitentials.1  Though  these 
protests  produced  some  results  in  encouraging  the  compiling 
and  use  of  severer,  more  authoritative  penitential  codes,  yet 
they  were  unable  to  suppress'  the  growing  use  of  commuta¬ 
tions!  and  the  shortening  of  the  periods  of  penance.2  In 
some  cases,  substitutes  might  be  hired  or  otherwise  used  by 
powerful,  wealthy  men,3  though  this  practice  seems  to  have 
been  limited;  and,  at  least  in  a  few  cases,  associations  of 
friends4  might  be  formed  to  perform  penances  for  each 
other.  1 

The  source  for  the  custom  of  money  redemptions  is  gen¬ 
erally  considered  to  have  been  the  secular  system  5  of  money 
compositions  for  wrongs  to  individuals.  Apparently  the 
first  penitential  codes  to  allow  such  redemptions,  either  to 
the  Church  or  as  partial  redemption  by  payment  of  com¬ 
pensation,  were  the  Irish  and  the  English.6 

1  Vide  supra,  chap,  i ;  also  infra,  chap,  iii,  for  commutations  in  Great 
Britain  and  Ireland. 

2  Lea,  loc.  cit.;  Lepicier,  Hist,  of  Indulgences,  passim.  iSee  especially 
the  numerous  commutations,  etc.,  in  P.  Ps.-Th.,  Wasserschleben,  622, 
and  the  comment  supra,  chap,  i ;  cf.  an  eleventh-century  example  in 
Wasserschleben,  625  et  seq.‘,  also  late  examples  in  Schmitz,  II,  415  et 
seq.,  418,  409  et  seq v  41 1,  413,  4*9,  457,  45$  H  seq.,  and  others;  also 
infra,  under  P.  Ps.-Bede,  P.  Ps.  Egb.,  Can.  Edg.,  and  others  in  chap,  iii, 
where  the  matter  is  more  fully  discussed. 

3  Especially  according  to  Can.  Edg.,  a  Frankish  compilation  which  was 
apparently  introduced  into  England  late  in  the  period  of  our  field;  vide 
infra,  and  chaps,  i,  iii. 

4  Robertson,  CH.,  II,  1,  238,  after  council  of  Glovesho.  Possibly  this 
may  have  been  influenced  by  the  so-called  “  frith-gilds  ”  for  the  pay¬ 
ment  of  secular  compositions;  but  see  Liebermann,  Gesetse,  II,  s.  v. 

5  Schmitz,  I,  loc.  cit.,  and  the  various  religious  encyclopedias  for  this 
familiar  view.  Cf.,  also,  on  enforcement,  infra,  chap.  v. 

6  Vide  Schmitz,  I,  146;  Funk,  in  KLcx.,  s.  v.  “Busse" ;  Wasserschleben, 
“  V orrede  ”,  and  others ;  cf.  infra,  chap.  iii. 


54 


ENGLISH  PENITENTIAL  DISCIPLINE 


[412 

Numerous  Protestant  writers,1  in  criticising  the  influence 
of  the  Penitential'S,  have  unduly  emphasized  the  evil  effects 
of  penitential  commutations  and  compositions  in  developing 
the  idea  that  immunity  from  penance  could  be  purchased. 
Viewing  the  matter  almost  entirely  from  the  ecclesiastical 
viewpoint,  their  perspective  has  been  too  narrow  to  include 
the  very  strong  influence  of  the  Penitentials  as  supplement¬ 
ing  the  somewhat  weak  secular  laws.  As  will  be  seen  in 
greater  detail  below,2  penitentials  often  required  the  pay¬ 
ment  of  the  regular  secular  compositions  for  crime,  and 
punished  by  additional  penance  failure  to  do  so.  In  so 
doing,  as  well  as  in  demanding  restitution,  they  proved 
powerful  aids  to  the  secular  law.  The  very  broad  exten¬ 
sion  of  the  system  of  commutations  for  money  to  practically 
all  sins,  in  those  penitentials  which  were  condemned  by  the 
reform  councils  of  the  ninth  century,  lost  sight  of  the 
original  purposes  of  alleviations  for  cases  where  the  per¬ 
formance  of  severe  penances  was  impossible  because  of  phy¬ 
sical  infirmity  or  laborious  occupations. 

Its  greatest  evil  was  not  merely  in  introducing  the  pay¬ 
ment  of  money  commutations  to  ecclesiastical  authorities  in 
the  place  of  penance.  It  lay  chiefly  in  developing  a  tend¬ 
ency  towards  discrimination  in  favor  of  the  powerful  and 
wealthy,  such  as  were  able  to  pay  money  redemptions.3 

1  Gieseler,  KG.,  II,  i,  525-529;  Robertson,  Church  Hist.,  I,  553,  II,  238 
and  notes;  DC  A.,  II,  1608;  Schaff,  Church  Hist.,  passim;  Milman,  Latin 
Christianity  (London,  9  vols.,  1883),  L  153 ;  Lea,  Auricular  Confession, 
II,  104  et  seq.,  but  cf.  106-107;  Grimm,  DRA.,  661  et  seq .;  Turner,  Hist, 
of  the  Anglo-Saxons  (London,  3  vols.,  7th  ed.,  1852),  III,  86;  Phillips, 
Deutsche  Gcschichte,  II,  342-343,  cited  by  Alzog,  Church  Hist.,  I,  166; 
but  particularly  Friedberg,  A  us  den  deutschen  Bussbiichcr,  39-40.  Also 
vide  infra,  for  the  influence  of  penance  and  the  Penitentials  in  rein¬ 
forcing  secular  laws. 

1  Vide  infra,  chap.  vi. 

3  As  the  alternative  for  money  redemptions  was  the  performance  of 
penance,  the  poor  were  naturally  forced  to  the  latter  and  thus,  in  a  sense, 


55 


413]  the  general  operation  of  penance 

But  one  must  bear  in  mind  that  this  was  an  age  in  which 
money  compensations  were  nearly  the  only  method  of  the 
secular  laws  for  punishing  crime,  and  therefore  be  thankful 
that  the  Church  provided  supplementary  penalties  ini  addi¬ 
tion  to  those  of  the  secular  law.  To  obtain  an  accurate  and 
fair  estimate  of  the  socialising  tendencies  of  that  age,  one 
must  view  the  total  influence  of  both  Church  and  State  in 
penalising  crime;  and  not  make  the  mistake  of  “  reading  in  ” 
modern  ideals  or  of  viewing  the  two  systems  of  law  sep¬ 
arately.  ' 

Furthermore,  the  mistake  is  made  of  attributing  a 
system  of  commutations  to  the  Penitentials  en  masse. 
Whereas  there  were  actually  three  classes  or  stages  :  ( i )  the 
earlier  Celtic  and  English  penitentials,  which  generally  used 
commutations  scarcely  at  all;  (2)  the  succeeding  codes, 
which  greatly  exaggerated  them;  and  (3)  the  severe,  re¬ 
actionary  penitentials  that  appeared  on  the  Continent  in  the 
ninth  1  century.  In  these  classes  or  stages,  there  were,  of 
course,  sub-varieties  or  degrees  and  individual  differences; 
but  on  the  whole,  the  generalisation  above  is  valid.  With 
the  exception  of  the  Irish  Canones  Hiberncnses  and  the  allied 
old- Irish  treatise  De  Arreis,  which  are  very  lax,  (1)  the 
severe  penitentials  chiefly  include,  in  particular,  those  of 
David,  Vinnian,  Gildas  and  Theodore,  with  others  before 

the  fifth  century  and  the  early  Greek  penitentials.  Among 

• 

discriminated  against,  especially  as  money  payments  were  probably 
little  hardship  to  the  rich;  but  the  same  might  be  said  of  a  modern 
system  of  fines  in  the  courts  as  alternative  to  imprisonment.  Other 
methods  of  expiation — conversion  of  others,  charity,  forgiveness  of 
offences,  and  others.  On  various  lists  of  methods  of  expiation,  e.  g.  by 
Caesarius  of  Arles  and  Origen — Lea,  op.  cit.,  I,  8 2  et  seq.  and  passim. 

1  Further  detail  will  be  found1  in  chaps,  i,  iii  and  iv,  under  individual 
penitentials  and  commutations;  cf.,  also,  chap,  vi,  passim,  as  regards 
penances  for  individual  offences,  etc.  Lea,  op.  cit.,  II,  103  et  seq.,  re¬ 
marks  on  the  contrasting  severity  and  laxity  of  two  classes  of  peniten¬ 
tials  in  penancing  perjury  but  fails  to  make  the  distinction  sufficiently 
general. 


ENGLISH  PENITENTIAL  DISCIPLINE 


56 


[4H 


(2)  the  laxer  penitentials  were  many  of  Frankish  origin. 
While,  (3)  in  the  ninth  century  reaction  were,  e.  g.  those 
of  pseudo-Bede,  pseudo-Egbert,  pseudo-Theodore,  the 
Roman  group  and  others. 


SECT.  5.  THE  PENANCES  OF  CLERICS 
For  clerics,  certain  special  penalties  1  were  prescribed,  as 
well  as  many  of  the  .foregoing  and  longer  periods  of  penance. 
The  clergy  were  not  to  be  subjected  to  public  2  penance;  but, 
none  the  less,  they  must  perform  penance.  In  contrast  to 
the  social  discrimination  in  favor  of  rank  evidenced  by  the 
secular  laws,  numerous  passages  of  the  Penitentials  pro¬ 
vided  increased  penances  as  the  rank  of  the  ecclesiastic  un¬ 
dergoing  penance  was  higher.  In  addition,  the  clergy  were, 
naturally,  subject  to  certain  well-known,  pecular  penalties 
as  ecclesiastical  discipline  and,  in  serious  cases,  might  have 
their  status  profoundly  affected. 

Foremost  among  special  penalties  for  clerics  were  deposi¬ 
tion,  deprivation,  degradation  and  suspension.3  According 


1  On  penances  for  clerics  in  general :  Schmitz,  I,  125  et  seq.,  248-249, 
and  under  individual  offences:  Lea,  op.  cit.,  I,  38  et  seq.,  45-46;  infra, 
chap,  vi,  under  individual  offences ;  but  particularly  the  excellent  arti¬ 
cles  (Catholic)  in  Vacant  et  Maugenot,  Dictionnaire,  and  in  Herzog- 
Hauck  (Protestant),  under  the  heads  for  clergy,  deposition,  degrada¬ 
tion,  penance,  suspension,  etc.  The  present  work  omits  discussion  of 
the  well-known  controversy  over  the  “  indelible  character  ”.  For  pecu¬ 
liarities  of  clerical  penances,  see  also  Funk,  in  KLex.,  II,  1568. 

*  Lea,  op.* cit.,  I,  48-49;  II,  21,  43;  Schmitz,  I,  125-128.  According  to 
Binterim,  Dcnkwiirdigkeitcn,  V,  ii,  281  et  seq.,  the  higher  clergy  were 
exempt  from  public  penance;  cf.,  also,  Rauschen,  Busssakrament,  pas¬ 
sim.  The  Dialogue  of  Egbert  of  York  prescribes  that  persons  who  had 
committed  certain  heinous  offences  that  involved  public  penance  were 
not  to  be  ordained  or,  if  already  ordained,  must  be  deposed ;  vide  infra, 
chap,  iii,  under  public  penance. 

3  On  these  penalties:  Schmitz,  ut  infra;  Kober,  Deposition  und  Degra¬ 
dation  (Tubingen,  1867)  ;  but  especially  the  recent  work  in  Vacant  et 
Maugenot,  Dictionnaire,  arts.  “Degradation”  and  “Deposition”.  Also 
cf.  the  article  by  Kober  on  deposition  in  F.  X.  Kraus,  Realensyklopedie 
der  christlichcn  Altertiimer  (Freiburg,  1862). 


415]  THE  GENERAL  OPERATION  OF  PENANCE  57. 

to  Vacandard,1  deposition  and  degradation  were  synony¬ 
mous  terms  in  Christian  antiquity  and  up  to  the  twelfth 
century.  Deposition  deprived  clerics  of  all  the  prerogatives 
of  the  order  or  jurisdiction  which  they  had  enjoyed;  and 
took  away  their  benefices,  honors  and  dignities.  Besides 
these  penalties,  the  deposed  were  formally  thrust  out  of  the 
clergy  and  ceased  2  legally  to  be  members  of  it.  In  conse¬ 
quence,  they  lost  the  right  to  communicate  as  clerics  and 
must  receive  3  as  did  laymen.  In  obstinate,  grievous  cases 
of  continued  insubordination  after  deposition,  they  might 
even  be  deprived  of  the  right  to  lay  communion  and,  pos¬ 
sibly,  sometimes  be  relegated  among  the  penitents.4 

Constituting  one  of  the  severest  penalities  used  by  the 
Church  against  clerics,  deposition  was  employed  for  the 
most  grievous  offenses,5  especially  those  of  a  notorious 
character.  Among  the  English  in  the  pre- Norman  period, 
the  secular  laws  sometimes  prescribe  degradation  for  the 
following :  homicide,  striking,  complicity  in  theft,  receiv- 

1  In  Vacant  et  Maugenot,  Dictionnaire,  loc.  cit.,  col.  451 ;  cf.  limita¬ 
tions,  infra. 

2  Vacandard,  loc.  cit.,  cols.  452  et  scq.;  Kober,  Deposition,  etc.,  26  et 
seq.;  Schmitz,  I,  128,  130,  131,  797. 

3  Must  receive  “  communio  laica,”  according  to  Vacandard,  loc.  cit., 
cols.  455-457;  outside  the  “  cancclli,’’  cf.  Schmitz,  I,  130-131,  331,  476, 
532,  598,  622,  662,  731,  81 1,  and  Kober,  op.  cit.,  39  et  seq. 

14  Rarely.  Vide  Vacandard,  loc.  cit.,  col.  456;  Kober,  op.  cit.,  61;  Bin- 
terim,  Denkwiirdigkeiten,  IV,  Thl.  3,  5".  501  et  seq.;  VII,  Thl.  1,  S.  63; 
V,  Thl.  3,  S'.  282  et  seq. 

s  For  deposition  in  the  ancient  Church,  vide  Vacandard,  in  loc.  cit., 
cols.  472  et  seq.,  and  particularly  cols.  475-487,  sometimes  citing  the 
Penitentials.  For  the  English  secular  laws,  vide  Liebermann,  Gesetze 
II,  s.  v.  “Degradation” ,  “  Clcriker  ”,  “  Geistltche  ” ,  “  Colibat” ,  etc.;  and 
under  individual  crimes.  The  Dialogue  of  Egbert  of  York,  Interrog., 
XV,  prescribes  deposition  for  the  following,  if  ordained  persons:  idol¬ 
aters,  aruspices,  diviners,  magicians ;  false  witnesses ;  those  contami¬ 
nated  by  homicide  or  by  fornication;  thieves;  perjurers,  etc.  Vide  H. 
and  S.,  Ill,  410,  and  cf.  Thorpe,  Ancient  Laws  ...  of  England,  323. 


ENGLISH  PENITENTIAL  DISCIPLINE 


58 


[416 


ing  consecration  to  office  outside  one’s  own  diocese,  except 
by  permission  of  one’s  diocesan,  etc.,  often  in  addition  to 
other  penalties.  The  ancient  Church  inflicted  deposition  for 
homicide,  fornication,  adultery,  theft;  sometimes  for  usury, 
lese  majeste ,  idolatry,  schism,  paganism,  simony,  marriage 
of  the  clergy  (when  acted  against),  drunkenness,  insubor¬ 
dination,  etc.  Deposition  affected  not  only  the  ecclesiastical 
status  of  the  deposed;  it  might  also  carry  with  it  the  loss 
of  the  various  valuable  privileges  1  which  had  been  granted 
the  clergy  by  the  secular  governments.  In  extreme  cases 
the  deposed  might  even  be  reduced  to  earn  his  own  living 
by  lay  work ;  though  the  Church  might,  sometimes,  continue 
to  support  him,  in  case  of  old  age  or  sickness,  or  through 
humanity  or  fear  of  scandal. 

In  place  of  complete  deposition  from  clerical  office,  of¬ 
fending  clerics  might  suffer  partial  degradation  or  demotion 
to  an  inferior  rank.  They  might  be  suspended  temporarily 
or  endure  lasting  demotion,2  according  to  circumstances. 

In  order  to  control  the  private  penances  of  deposed  clergy, 
the  Church  often  directed  that  they  take  up  residence  in  a 
cloister,3  there  to  perform,  undisturbed,  the  penance  imposed. 

1  Rarely,  in  extreme  cases :  Vacandard,  loc.  cit.,  cols.  456  et  seq.,  after 
Kober,  op.  cit.,  79-95.  On  the  contrast  with  the  more  lenient  practices 
of  the  modern  Church,  ibid.,  cols.  472-473.  On  indulgences  to  deposed 
clerics,  vide  ibid.,  cols.  453,  455  and  458. 

2  Vacandard,  article  cited,  cols.  460-461,  after  Kober,  Die  Suspension 
dcr  Kirchendiener  (Tubingen,  1862),  1 13-129;  also  for  England,  cf.  pas¬ 
sages  in  Anglo-Saxon  Laws  in  Liebermann,  loc.  cit.  Liebermann,  op. 
cit.,  II,  s.  v.  “Degradation”  no.  2a,  remarks,  after  Richter-Kahl-Dove, 
KR.,  789 :  “  Die  Absetzung  vom  geistlichen  Amt  ist  im  9  Jh.  noch  ident- 
isch  mit  Ausschieden  aus  geistlichen  Stande.” 

On  the  ceremony  of  deposition,  vide  Du  Cange,  s.  v.  “  ordo,”  “  ex- 
or  dinar e.” 

3  On  the  exclusion  of  clerics  in  a  monastery :  Vacandard,  the  article 
cited,  cols.  458-459,  after  Kober,  Deposition,  etc.,  pp.  75-78;  Schmitz,  I, 
139  et  seq.,  249,  797-798;  and  many  references  in  the  texts  of  the  Peni- 
tentials  in  the  standard  editions,  passim. 


417]  THE  GENERAL  OPERATION  OF  PENANCE  59 

Such  penance  in  the  cloister  was  directed  by  the  bishop  1  or, 
in  Celtric  centers,  possibly  by  abbot-bishops.2 

SECT.  6.  THE  DIRECTION  OF  PENANCE  AND  OF  CONFESSION 

The  early  direction  of  the  adminstration  of  penance  and 
of  confession,  the  object  of  a  famous  controversy  3  between 
Catholics  and  Protestants,  does  not  here  concern  us  in  its 
various  aspects  before  the  latter  part  of  the  fifth  century, 
whervour  group  of  penitentials  begins. 

In  the  directing  of  penance,  five  questions  are  especially 
prominent,  (t)  Who  imposed  penance?  (2)  Who  super¬ 
vised  its  performance?  (3)  Who  reconciled  the  penitents? 
(4)  Was  penance  compulsory  or  voluntary?  (5)  How  fre¬ 
quently  did  confession  occur?  We  shall  treat  these  ques¬ 
tions  in  connection  with  public  and  private  penance  and  the 
administration  of  confession  and  absolution  from  the  fifth 
century  forward.4 

In  the  early  Church,  confession  was  at  first  apparently  to 
the  bishop,  in  case  of  public  sins  to  be  expiated  by  public 
penance;  and  public  sins  were  to  be  confessed  publicly. 
At  an  early  time,5  confession  became  private,6  in  the  main, 

1  Schmitz,  I,  141-142;  Hefele,  op.  cit.,  Ill,  762  and  passim;  cf.  infra, 
sect.  6. 

2  According  to  the  theory  of  those  who  maintain  that  private  penance 
developed  in  and  spread  from  Celtic  monasteries ;  vide  supra,  this  chap¬ 
ter,  on  private  penance. 

3  On  this  controversy,  we  consider  it  unnecessary  to  give  citations 
here,  other  than  to  note,  in  passing,  the  works  on  penance  listed  infra 
in  the  “  General  Bibliography  ”, 

4  An  excellent  bibliography  on  confession,  including  both  sides,  is  in 
Rauschen,  Busssakrament,  150  et  seq.  and  nn.,  and  passim. 

5  The  early  office  of  penitentiary  priest  was  abolished  by  Nectarius  in 
A.  D.  391.  Vide  Funk,  in  KLex.,  II,  s.  v.  “  Bussdisciplin  ” ;  Rauschen, 
op.  cit.,  133;  Sagmiiller,  KR.,  II,  45-  For  the  early  direction  of  pen¬ 
ance  by  the  bishop,  vide  Binterim,  op.  cit.,  V,  ii,  187-188;  Schmitz,  I, 
62,  142-143,  and  II,  42,  70,  573;  Funk,  in  KLex.;  II,  1569-1570. 

6  Vide  supra,  this  chapter,  under  private  penance. 


6o 


ENGLISH  PENITENTIAL  DISCIPLINE 


[418 

especially  after  the  reign  of  Pope  Leo  the  Great,1  (A.D. 
440) .  For  some  time  there  seems  to  have  been  some  diver¬ 
gence  of  opinion  2  over  the  relative  importance  of  confes¬ 
sion,  expiation,  (satisf actio) ,  and  absolution.  But,  how¬ 
ever  that  may  have  been,  private  confession  to  the  priest  was 
recognised  as  a  wide-spread  institution  during  the  period  of 
the  Western  penitent ials. 3 

Bishops  still  continued,  however,  to  have  the  power  to 
direct  penance  in  extreme  instances,  at  least  to  the  extent 
of  requiring  reports  from)  such  cases4  by  the  priests.  In 
the  Frankish  kingdom  of  the  ninth  century,  supervision  be¬ 
came  particularly  thorough  by  bishop’s  visitation  and 
synodal  court,5  as  well  as  by  the  revival  of  public  penance. 
Increasingly,  however,  the  tendency  was  to  develop  the  prac¬ 
tice  of  private  penance,  under  the  direction  of  the  priest, 
with  the  gravest  offences  reserved  to  the  bishop.6  At  times 
during  this  period,  both  private  and  public  penance  probably 
coexisted  as  contemporary,  complementary  forms. 

The  power  to  reconcile  penitents  undergoing  public  pen¬ 
ance  was  vested  in  the  bishop,  but  in  the  case  of  the  dying 

1  Batiffol,  Etudes ,  I,  153-154,  after  Leo’s  epistles. 

2  Vide  Herzog-Hauck  and  DC  A.,  articles  on  confession;  also  the 
various  Catholic  encyclopedias. 

3  Vide  supra,  this  chapter,  under  private  penance;  also  infra,  chap,  iii, 
for  confession  in  the  British  Isles. 

4  Schmitz,  I,  158  et  scq.,  142-143,  and  II,  412,  70,  90-91,  253.  On  the 
synodal  courts  see,  particularly,  the  excellent  accounts  by  Dove  in 
Herzog-Hauck;  in  ZKR.,  XIV,  119  et  seq.;  and  in  Richter-Kahl-Dove, 
KR.  (8th  ed.),  597  et  seq.,  833  et  seq. 

5  Vide  supra,  on  the  bishop;  also  supra,  this  chapter,  under  public 
penance. 

6  Vide  supra,  on  the  power  of  the  bishop;  also  supra,  this  chapter, 
under  private  penance,  for  controversy  over  the  direction  of  private 
penance  from  the  Celtic  monasteries.  For  the  controversy  over  public 
penance,  supra,  this  chapter  and  infra,  chap.  iii. 


6i 


4 1 9]  THE  GENERAL  OPERATION  OF  PENANCE 

might  be  performed  by  a  priest  or  even  by  a  deacon.1  But 
the  growing  supervision  of  private  penance  by  priests 
brought  with  it  absolution  also  by  the  priest  in  cases  of 
private  penance.  'As  a  general  result,  from  the  late  fifth 
century  forward,  reconciliation  for  sins  requiring  private 
penance  was  granted  by  the  priest.2 

On  the  question  of  whether  confession  was  compulsory 
or  voluntary,  opinions  are  very  divergent.  But  it  seems  that 
the  practice  of  confession  was  strongly  urged  during  this 
period,  and  that  it  was  greatly  encouraged  by  special  pri¬ 
vileges  granted  to  communicants  by  the  secular  laws,  and  by 
similar  laws  directing  partial  commutation  of  secular  penal¬ 
ties  and  the  like.3  Frequency  of  confession  was  largely 
left  to  the  individual,  though  Christians  were  urged  to  com¬ 
municate  frequently.4 

1  On  reconciliation  in  the  early  Church:  Funk,  in  KLex.,  II,  1564; 
Binterim,  op.  cit.,  V,  ii,  302  et  seq.;  Koch,  in  Historisches  Jahrbucli 
( Gorres-Gesellschaft ,  1897),  p.  493;  and  supra,  this  chapter,  under  the 
controversy  on  public  penance. 

For  reconciliation  of  the  dying  even  before  completing  penance : 
Funk,  loc.  cit.,  1565;  'Schmitz,  II,  251,  275;  iRauschen,  op.  cit.,  146  and 
passim;  and  the  Anglo-Saxon  Laws  of  Edward  and  Guthrum,  can.  iv 
(Liebermann  ed.). 

For  the  power  of  the  bishop  over  reconciliation :  Lea,  op.  cit,,  I,  12-13 ; 
infra,  on  the  ceremonies  of  reconciliation;  but  particularly  P.  Th.,  cans, 
v,  vi  (Wasserschleben  edition).  For  the  later  power  of  the  priest: 
Binterim,  op.  cit.,  V,  ii,  187-188,  189-190;  Lea,  op.  cit.,  I,  73,  313;  also 
supra,  this  chapter,  under  private  penance. 

1  Supra,  this  chapter,  under  private  penance;  and  infra,  chap.  iii.  On 
the  danger  of  confusion  on  this  point,  vide  Batiffol,  Etudes,  I,  198;  and 
an  article  by  Boudinhon,  in  RHLR.  (1897),  306  et  seq. 

*  Vide  infra,  chap.  v. 

*  See  the  references  on  confession,  supra,  sect.  6.  Watkins  maintains 
that,  from  A.  D.  450-^650,  there  were  two  classes :  those  who  came  for¬ 
ward  voluntarily  and  those  who  were,  for  notorious  offences,  enforced 
by  authority;  but  that  “the  mass  of  the  Christian  population,  except 
for  death-bed  ministrations,  stand  outside.”  Vide  Watkins,  op.  cit.,  537 
et  seq. 

The  same  authority  contends  that,  during  this  period,  confession  and 


62 


ENGLISH  PENITENTIAL  DISCIPLINE 


[420 


SECT.  7.  RECONCILIATION 

In  the  early  Church  reconciliation  was  given  only  after 
penance  had  been  completed.1  This  continued  to  be  the 
basic  principle  from  A.D.  450-950,  but  with  a  growing 
tendency  to  alleviate,  in  certain  cases,2  by  means  of  redemp¬ 
tions  of  various  kinds.  Various  terms  were  used  for  recon¬ 
ciliation,  such  as  :  “To  return  to  the  church,”  (“  re  dire  ad 
ecclesiam”),  “to  be  recalled,”  (“  revocari”) ,  “  to  be  ad¬ 
mitted  to  the  church,”  (“  admit ti  ad  ecclesiam”) ,  “to  re¬ 
ceive  the  right  of  communion,”  (“jus  communicationis  ac- 
cipere ”)  ;  and  references  to  receiving  the  “  kiss  of  peace”, 
together  with  other  terms.3 

'In  public  penance,  the  bishop  held  a  consultation  with 
his  priests  and  deacons  before  reconciling  the  penitents,  in 
order  to  determine  which  of  them  deserved  readmission4' 
Public  reconciliation,  when  practiced,  took  place  just  before 
mass  on  Holy  Thursday  or  Good  Friday.5  After  recita- 

private  penance  grew  up  in  Celtic  centers;  that,  from  A.  D.  650-950,  it 
spread  in  England  and  on  the  Continent  until,  under  Theodore,  recur¬ 
rent  confession  was  coming  to  be  the  habit  of  the  devout  life;  and  that, 
thereafter,  its  use  gradually  prevailed  until  annual  confession  was  made 
compulsory  by  the  council  at  Rome,  in  A.  D.  1215.  Vide  Watkins,  op. 
cit.,  loc.  cit.,  654  et  scq.,  7 61  et  seq.;  contra,  the  Catholic  authorities 
mentioned  in  the  articles  on  confession,  etc.,  in  the  Catholic  encyclo¬ 
pedias. 

1  Koch,  in  Histonsches  Jakrbuch  (1897),  488-499;  Binterim,  Denk- 
wiirdigkeiten,  V,  302  et  seq.;  and  infra ,  chap,  iii,  for  usages  in  the 
British  Isles.  Contra,  Watkins,  op.  cit.,  495. 

2  Schmitz,  I,  28,  31,  509;  Funk,  in  KLex v  II,  1564;  and  infra,  chap, 
iii,  under  commutations. 

3  Binterim,  loc.  cit.;  Koch,  in  Historisches  Jahrbuch  (1900),  pp.  488  et 
seq.;  Schmitz,  loc.  cit.;  Watkins,  op.  cit.,  611  et  seq.;  also  infra,  chap, 
iii.  under  reconciliation,  for  other  terms. 

4  Watkins,  op.  cit.,  581  et  seq.,  omits  this  council;  but  it  is  mentioned 
in  Lepicier,  op.  cit.,  236  et  seq. 

5  On  Holy  or  Maundy  Thursday  in  the  church  at  Rome  and  generally 
in  the  West:  Funk,  in  KLex.,  II,  1565;  Batiffol,  Etudes,  I,  163;  Rau- 
schen,  op.  cit.,  146.  Good  Friday  was  so  used  in  Spain  and  the  Ambro- 


421] 


THE  GENERAL  OPERATION  OF  PENANCE 


63 


it  ion  of  the  penitential  psalms  and  the  litanies,  at  the  foot 
of  the  altar,  the  bishop  reminded  the  penitents  of  their 
obligation  to  lead,  henceforth,  an  upright  life.  Then,  with 
lighted  candles  in  their  hands,  the  penitents  were  led  into 
the  church;  prayers,  antiphons  and  responses  were  said; 
and,  finally,  public  absolution  was  given.1 

In  private  penance,2  reconciliation  was  administered  pri¬ 
vately  3  by  the  priest.  The  form  of  private  absolution  in 
the  early  centuries  is  difficult  to  determine,  though  it  was 
usually  in  the  form  of  a  prayer'4  until  the  thirteenth  cen¬ 
tury  ;  but  Watkins  believes  that  nowhere  was  the  Eucharist 
itself  an  actual  means  of  absolution.  Reconciliation  in  the 
private  system  apparently  had  no  definitely  distinctive  ritual. 
It  seems  to  have  consisted  in  the  acts:  previously  mentioned 
among  the  terms  5  employed  for  reconciliation  by  the  Peni- 
tentials. 

sian  Church,  vide  Lepicier,  loc.  cit.;  Morinus,  J.,  Commentarius  hist,  de 
disciplines  in  admin,  sacrant.  poenitentiae,  Lib.  ix,  cc.  28,  3  et  seq.  At 
Cologne,  reconciliation  was  celebrated  on  Palm  Sunday;  vide  Lepicier, 
op.  cit.,  230;  Du  Cange,  v.  “  Poenitentia  ” ,  “  Absolutio”  “Reconcilia¬ 
tion;  Watkins,  op.  cit.,  583  et  seq. 

1  Vide  the  opp.  citt.,  supra,  this  section  and  the  section  on  public  pen¬ 
ance;  also  chap,  iii,  under  public  penance.  The  latter  gives  references 
to  the  ceremonies  in  the  pontificals.  The  forms  are  also  described  in  the 
various  ordines  ad  dandam  poenitentiam  prefixed  to  some  Continental 
penitentials  and  to  some  of  Continental  origin :  e.  g.  pseudo-Bede  I,  the 
pseudo-Roman  Penitential  and  others ;  see  the  texts  in  Schmitz’s  edi¬ 
tion,  passim.  Some  sacramentaries  also  contain  ordines  for  imposing 
penance  and  for  reconciliation ;  vide  Sagmuller,  KR.,  passim,  for  edi¬ 
tions,  etc. 

2  For  the  thesis  that  private  penance  first  developed  in  Celtic  and 
English  centers,  chiefly  monasteries,  and  that  it  afterwards  spread  else¬ 
where,  vide  Watkins,  op.  cit.,  passim;  cf.  infra,  sects.  1-2,  under  private 
penance,  etc.,  for  other  references. 

3  Watkins,  op.  cit.,  493-494. 

4  Ibid.,  496. 

V  Vide  supra,  this  section,  for  these  terms,  and  infra,  chap,  iii,  under 
reconciliation.  For  the  controversy  over  the  meaning  of  “  ecclesia,”  in 
such  terms  as  “  admitti  ad  ecclesiam  ” ,  vide  supra,  sect.  2,  for  the 
recent  writers  on  public  penance,  particularly  the  work  of  Koch, 
Ludwig,  d’Ales  and  Batiffol. 


CHAPTER  III 


The  Operation  of  Penance  in  Pre-norman  Times 

SECT.  I.  INTRODUCTORY 

As  the  starting-point  for  the  discussion  of  penance  among 
the  peoples  in  question,  as  for  the  Church  in  general,  ap¬ 
pears  the  well-known  distinction  between  degrees  or  classes 
of  sins.1  The  common  distinction  between  sins  made  by 
the  Penitentials  was  that  of  capital  and  lesser — “  capitalia 
crimino  ”  and  "  peccata  minora 2 

The  capital  sins  or  vices  were  usually  grouped  by  the 
Celtic  and  English  penitentials  in  the  Octoade  or  group  of 
eight  capital  sins,  formed  on  the  model  furnished  by  Cas- 
sian.3  These  eight  consisted  of  pride,  envy,  unchastity, 

1  For  the  following’  account  of  penance  in  the  British  Isles  the  pre¬ 
sent  writer  has  found,  of  particular  value  the  sketches  by  Hanna,  in 
Cath.  Ency.  XI,  632-633  and  by  Thurston,  in  The  Tablet,  (London, 
Feb.  and  Mar.,  1905).  He  agrees  with  most  of  their  conclusions  but 
feels  constrained  to  note  their  uncritical  use  of  spurious  matter  as 
genuine  and  their  neglect  of  much  valuable  evidence  and  many  im¬ 
portant  conclusions,  both  from  the  sources  and  from  recent  writings. 
For  further  critical  notes  on  the  authorities,  infra,  the  “  General  Biblio¬ 
graphy.” 

On  classes  of  sins:  Lea,  Auricular  Confession  II,  238,  258  et  seqq.’, 
Rauschen,  Buszsakrament,  158  et  seqq.-,  Schmitz  I,  191,  575,  502,  594, 
620,  768,  11-12,  13,  55,  59,  159. 

2E.  g.  P.  Egb.  cans,  i-ii,  in  Wasserschleben  233-234;  H.  and  S.  Ill, 
419-420;  Schmitz  I,  575.  Cf.  P.  Bede,  cans,  xxvi-xxvii. 

3  Schmitz  I,  locc.  citt.  and  208,  191,  229,  230,  307,  697,  666,  519,  566, 
761,  192;  also,  supra,  chap,  i,  on  the  sources  for  the  Penitentials.  Cf., 
also,  the  Frankish  Ecclesiastical  Institutes,  can.  xxxi,  in  Thorpe,  Ancient 
Laws,  etc.,  p.  482;  and  comments  on  its  origin  by  Hormann,  in  Fitt¬ 
ing’s  Melanges  II  (Montpellier,  1908),  passim. 

64 


[422 


THE  OPERATION  OF  PENANCE 


423] 


65 


anger,  bitterness,  vain-glory  or  sadness  of  the  world,1  glut¬ 
tony  and  avarice.2 

In  this  list,  the  concept  is  that  of  sins  of  thought.  The 
list  of  actual  misdeeds  began  with  murder  or  with  shedding 
of  blood,3  or  sometimes  with  fornication,4  and,  with  slight 
variations  in  order,  included  offences  that  were  the  actual 
working  out  of  the  above  states  of  mind.5  It  is  interesting, 
also,  to  note  that,  in  contrast  to  the  Secular  laws  of  the 
time,  the  Penitentials  differentiated  degrees  of  some  crimes 
— e.g.  murder — according  to  intent  or  other  extenuating 
circumstances.  In  so  doing,  they  may  have  been  partly  in¬ 
fluenced  by  the  concepts  of  Roman  law,  transmitted  through 
the  ecclesiastical  canons;  and  partly  by  Christian  teaching.8 


1(‘Tristitia  seculi;”  cf  “  accidia,”  in  Watkins,  Hist,  of  Penance  703, 
note  3. 

2  Schmitz,  Wasserschleben,  locc.  citt.  Cf.  Loning,  KR.,  471-472  and, 
note  I.  Vide  P.  Egb.,  can.  i,  in  Schmitz  I,  575;  Wasserschleben  and 
H.  and  S.,  locc.  citt.:  “Nunc  de  capitalibus  criminibus:”  “Nunc  igitur 
capitala  crimina  secundum  canones  explicabo.  Prima  superbia:  in- 
vidia,  fornicatio,  inanis  gloria,  ira  longo  tempore,  tristitia  seculi,  avari- 
tia,  ventris  ingluvies.”  But  sometimes,  as  in  this  case,  there  were 
citations  from  other  fathers  as  well — e.  g.  Augustine.  Cf.  the  Anglo- 
Saxon  Aldhelm’s  metrical  De  Octo  Principalibus  Vitiis,  mentioned  by 
Cutts,  Parish  Priests,  etc.,  (London,  etc.,  1898),  214;  and  Bridgett, 
Holy  Eucharist,  (1  vol.  ed.,  London,  1908),  228. 

3  Vide  Schmitz,  and  other  works  cited  supra,  passim.  Cf.  P.  Vinn., 
v  et  seqq.,  xviii  et  seqq.;  Can.  Hibcrn.,  passim,  in  Wasserschleben  136 
et  seqq.;  P.  David,  passim;  Syn.  Br.,  passim;  all  according  to  Wasser- 
schleben’s  texts.  But  contra,  Syn.  Viet.,  passim.  For  others,  infra, 
under  individual  codes ;  and  supra,  chap.  i. 

iCf.  supra. 

5  Supra,  chap,  ii;  infra,  chap.  v. 

6  Supra,  chap.  i.  Cf.  infra,  chap,  v,  on  the  attitude  of  the  Germanic 
secular  laws. 


66  ENGLISH  PENITENTIAL  DISCIPLINE  [424 

SECT.  2.  THE  FORMS  OF  PENANCE  IN  THE  BRITISH  ISLES 

The  forms  of  private  penance  employed  by  the  Celtic  and 
by  the  English  penitentials  were,  in  general,  much  the  same 
as  those  described 1 2 3  above  for  the  Continent.  The  Celtic 
penitentials,  however,  used  more  frequently  the  severe  super- 
impositiones  2 — or  all-day  fasts — and  the  Celtic  usages  3  in 
private  penance  had  several  other  peculiarities.  Quaint 
Irish  4  penances,  for  instance,  sometimes  consisted  in  sleep¬ 
ing  in  waters  or  on  nettles  or  on  nutshells  or  with  a  dead 
body  in  a  tomb;  fasting  “black  fasts;”  besides  peculiar 
traits  of  the  Irish  Feil  or  vigil.  In  the  practices  of  com¬ 
mutation  and  of  public  penance  there  was  so  much  varia¬ 
tion  at  different  periods  in  the  British  Isles  that  separate 
discussion  will  be  necessary. 

Regarding  public  penance,  general 5  opinion  among 
scholars  has  usually  interpreted  a  reference  in  the  Peniten¬ 
tial  of  Theodore  to  mean  that  public  penance  never  existed 
in  the  Irish  and  British  Church  before  Theodore  nor  there- 

1  Vide  supra,  chap,  iii,  sect.  3. 

2  For  examples,  see  provisions  in  the  penitentials  of  David,  Vinnian, 
Gildias  and  the  Welsh  synods,  in  Wasserschleben  102,  103,  105-107,  109. 

3  Vide  Gougaud,  Lcs  chretientes  celtiques,  (Paris,  1911),  chap,  iii, 
sect.  12;  and  infra,  on  commutations,  this  chapter. 

4  For  peculiar  Irish  penances,  vide  Bellesheim,  Geschichte  dcr  katho- 
lishchen  Kirche  in  lrland,  (3  vols.,  Mainz,  1890-1891),  I,  608-609  and 
his  excellent  references ;  an  article  dealing  with  the  Irish  Feil  or  vigil, 
in  the  Dublin  Review  III,  s.  xii,  345  et  scqq.;  but  particularly  the  text 
of  the  old-Irish  treatise  De  Arreis — On  Commutations,  edited  by  Kuno 
Meyer  in  Rev.  Celt.  XV,  (1894),  passim.  “Black  fasts”  were  a 
peculiar  Irish  fast  without  “white  meats” — milk,  butter,  cheese  and 
eggs. 

5  For  opposition  to  the  existence  of  public  penance  in  the  British  Isles 
at  any  time  see  the  articles  on  penance  in  the  encyclopedias  of  theo¬ 
logy,  of  religion  and  of  liturgy;  the  editions  of  the  Penitentials,  espec¬ 
ially  those  of  Schmitz  and  Wasserschleben,  passim;  Loning,  K.R.,  II, 
471,  with  his  excellent  references.  The  reference  used  is  P.  Th.  I,  can. 
xiii,  sect.  3. 


THE  OPERATION  OF  PENANCE 


425] 


67 


after.  On  the  contrary,  however,  Kliefoth1  has  claimed 
that  the  British- Irish  Church  knew  public  church-penance 
and  that  it  was  first  completely  suppressed  by  private  pen¬ 
ance  in  the  Anglo-Saxon  Church;  while  Pi j per  2  claims  that 
public  penance  was  practised  in  the  Anglo-Saxon  Church 
also.  For  the  early  British-Irish  Church,  however,  very 
few  references  3  exist  which  might  refer  to  public  penance 
and  these  are  very  ambiguous;  while  the  references  in  the 
Anglo-Saxon  penitentials  are  quite  different.  Hence  the 
subject  requires  separate  treatment  for  these  different 
periods. 


SECT.  3.  CONFESSION  AND  PENANCE  IN  THE  IRISH  CHURCH 

On  the  question  of  public  penance  in  this  Church,  the 
sources  4  for  confession  and  penance  are  mostly  ambiguous 
or  silent.  References  to  confession  before  others  do  not 
mention  public  ceremonies  and  indicate  that  the  priest  gave 
absolution,  rather  than  the  bishop,  who  reconciled  elsewhere 

1  Kliefoth,  Liturgische  Abhandlungen,  (1854),  II,  139,  151,  cited  by 
Loning,  KR.,  II,  note  2,  with  opposing  arguments. 

2Pijper,  Boete  en  Biecht,  II,  42-44,  with  additional  citations  from 
Alcuin,  the  Council  of  Clovesho  and  the  Penitential  of  Egbert.  Wat¬ 
kins,  op.  cit.,  passim,  opposes  the  existence  of  public  penance  in  the 
British  isles  at  any  time. 

3  Vide  Can.  Hibern.,  Tit.  I,  can.  xii,  in  Wasserschleben ;  Kliefoth,  loc. 
cit.  Watkins,  op.  cit.  587  and  603,  has  text  and  comment  on  a  decree 
erroneously  ascribed  to  St.  Patrick,  probably  of  date  A.  D.  475  (?), 
can.  iii :  “  That  the  abbat  see  to  whom  the  power  of  binding  and  loos¬ 
ing  be  applied  (attribuetur) .  If  the  penance  be  with  weeping  and) 
lamentation  and  sad  attire  in  confinement,  it  may  be  shortened  and 
tempered.”  Cf.  H.  and  S.  II,  ii,  333.  Watkins,  op.  cit.  603  comments 
on  the  possible  reference  to  public  penance  but  notes  the  absence  of  any 
public  reconciliation  by  the  bishop. 

4  Vide  Hanna,  in  Cath.  Ency.,  articles  “  Penance”  and  “  Confession;  ” 
also  our  comments  supra,  sect.  1,  notes;  also  Watkins,  op.  cit.,  locc. 
citt.  and  the  articles  in  Hastings’  Encyclopedia,  etc.,  under  the  same 
heads  as  above. 


68 


ENGLISH  PENITENTIAL  DISCIPLINE 


[426 

in  the  case  of  public  penance.  This  silence  is  also  found 
concerning  penitential  stations.  The  only  definite,  explicit 
reference  1  to  anything  resembling  them  apparently  refers 
to  a  minor  offense.  From  the  above  references  we  would, 
therefore,  conclude  that  the  ceremonies  of  public  penance 
were  absent  from  the  Irish  Church.  The  importance  of 
this  conclusion  for  the  Celtic  Church  in  England  and  for 
parts  of  the  Continent  that  were  chiefly  evangelised  by 
Irish  missionaries  is  obvious. 

Private  confession  2  evidently  existed  in  the  Irish  Church 
during  the  period  in  question.  This  is  shown  by  frequent 
references  in  the  sources  to  confession  to  an  ecclesiastical 
confessor;  by  frequent  provisions  in  the  penitential  codes; 
and  by  the  fact  that  the  secret  character  of  these  codes,  pos¬ 
sessed  only  by  the  clergy,  necessitated  confession  of  the 
laity  to  them.3  In  all  cases,  confession  was  necessary  be¬ 
fore  communion.  But,  in  the  early  passages,  the  frequency 
of  confession  was  not  specifically  stated ; 4  it  was  apparently 
left  to  the  individual,  though  frequent  confession  was  urged. 

1  For  references,  vide  supra,  sect.  2,  notes.  For  the  role  of  Celtic  mis¬ 
sions  and  monastic  centers  in  developing  and  spreading  private  pen¬ 
ance  and  penitentials,  vide  Watkins,  op.  cit.  5 37  ct  seqq.,  620  et  seqq., 
688  et  seqq.,  755  ct  seqq.  and  passim ;  also  supra,  chap,  ii  and  infra,  this 
chapter,  under  private  penance  and  Celtic  penitentials. 

1  See  the  article  by  Hanna  in  Cath.  Ency.  and  its  references  for  further 
details;  also  Watkins,  op.  cit.,  passim,  60 6. 

3  Schmitz  I,  162,  142  and  Vering,  loc.  cit,  p.  1 ;  cf.  also  Lea,  Auricular 
Confession  II,  105.  For  passages  in  the  sources:  Mansi,  op.  cit.,  XV, 
426,  can.  lxxv,  Harduin,  op.  cit.  V,  354;  Hefele,  op.  cit.  IV,  346  et 
seqq.,  for  confession  to  the  priest;  P.  Vinn.,  cans,  i-iii,  in  Wassersch- 
leben  108  et  seq . ;  can.  xvi-xvii,  in  Wasserschleben  in;  andi  Watkins, 
passim. 

‘Vide  P.  Vinn.,  cans,  i-iv,  for  general  clauses;  also  the  canons  follow¬ 
ing;  Wasserschleben  108  et  seq.  and  canons  xxii,  xxxii,  xxxv-xxxvii. 
But  see,  especially,  the  fine  discussion  in  Watkins,  op.  cit.,  passim,  and 
other  works  cited  supra,  ch.  ii,  sect.  6  and  passim.  See,  in  particular, 


427] 


THE  OPERATION  OF  PENANCE 


69 


SECT.  4.  IRISH  COMMUTATIONS  AND  THE  LIKE 

As  regards  the  presence  or  absence  and  the  extent  and 
nature  of  these  phases  of  penance  in  the  Irish  penitential 
canons,  there  was  a  great  deal  of  variation.  As  will  be 
demonstrated,  it  is  dangerous  to  generalise  very  broadly 
on  this  subject,  as  individual  penitentials  that  sometimes 
differed  widely  were  probably  used  in  various  sections  at 
different  times.  Hence,  the  question  of  commutations  will 
be  discussed  according  to  individual  penitentials. 

In  the  Penitential  of  Vinnian,1  there  is  no  reference  to 
money  commutations  or  redemptions  paid  to  ecclesiastical 
authorities.  References  to  the  payment  of  compositions 
mean  secular  compositions  for  crimes,  or  restitution  ac¬ 
cording  to  secular  2  customs  ;  but  there  is  stern  insistence 
upon  obedience  to  such  secular  laws,  in  addition  to  penance.3 
For  perjury,  offenders  are  to  free  a  slave  or  give  equivalent 
alms;  and  similar  -rules  apply  in  general  to  this  penitential. 

The  Canones  Hibernenses,  Title  I,  possibly  drawn  up  by 
a  mixed  secular  and  ecclesiastical  assembly,'4  permit  several 
compensations  by  means  of  slaves  or  of  money,  for  abor- 

Watkins,  op.  cit.  537  et  seqq.,  654  et  seqq,,  761  et  seqq.,  for  the  belief 
that,  in  periods  of  missionary  work  by  Celtic  and  English  workers, 

‘  it  is  probable  that  the  acceptance  of  such  penances  ....  with  the 
:onfessions  almost  necessarily  involved,  would  be  increasingly  urged 
ind  insisted  on.  Yet  ....  a  large  proportion  of  persons  ....  would 
t>e  likely  to  remain  outside  the  operations  of  the  discipline  of  the 
Church ;  ”  ibid.,  654.  Watkins  also  dates  the  beginning  of  recurrent 
:onfessioni  as  a  habit  of  devout  laity,  as  well  as  clergy,  at  about  the 
:ime  of  Theodore  of  Canterbury.  Cf.  supra,  ch.  ii,  sect.  6,  on  fre- 
juency  of  confession,  after  Egbert’s  Dialogue. 

1  Wasserschleben  108  et  seqq.;  cf.  P.  Columb. 

iP.  Finn.,  cans,  viii-ix,  xxii-xxiii,  xxv,  xxxv,  in  Wasserscleben,  loc. 
it.,  which  we  follow  for  Vinnian. 

3P.  Finn.,  can.  xxii. 

4  F ide  infra. 


70 


ENGLISH  PENITENTIAL  DISCIPLINE 


[42S 

tion  1  and  for  destroying  the  mother  and  child ;  in  some 
cases  in  addition  to  penance,2  in  others  standing  alone.3 
But  it  is  to  be  noted  that  parricide,  homicide,  magic,  heresy, 
adultery,  pollutions  from  unclean  food,  illicit  familiarity, 
and  capital  crimes  in  general  are  penalised  by  penance  alone 
-in  this  set  of  canons.'4  In  these  penitential  canons,  there¬ 
fore,  we  find  that  commutations  are  not  allowed  and  com¬ 
pensations  usually  practised  only  in  addition  to  penance. 
In  this  it  agrees  with  the  Penitential  of  Vinnian. 

Another  portion  of  the  Canones  Hibernenses,  probably  of 
a  different  date,5  provides  the  substitution  of  psalms  or  of 
genuflections,  prostrations  and  cross-vigils,6  separately  or 

1  Can.  viii,  cf.  can.  ix,  in  Wasserschleben — “  XII  ancillae ;  ”  cf.  similar 
compensation,  cans.  x-xi. 

2  E.  g.  penance  of  “  III  anni  et  semis,”  can.  vi ;  cf.  can.  vii ;  cf.  in  can. 
xi,  penance  of  “  XII  anni,  i.  p.  e.  a. ;  ”  cf.  can.  viii — “  XII  ancillae.” 

3  Supra. 

4  Wasserschleben  loc.  cit.,  ct  seqq.,  cans,  i-vi,  xii  to  end.  But  cf.  the 
addition  of  “  satisfactions ”  in  can.  i. 

6  Vide  infra ;  also  supra,  chap,  i,  for  date  of  the  Latin  MS.  “  Concern¬ 
ing  Commutations”  or  “  De  Arreis.” 

A  similar  but  more  detailed  treatise  in  old-Irish,  with  English  trans¬ 
lation  and  critical  notes,  is  edited  by  Kuno  Meyer,  in-  Rev.  Celt.  XV, 
(1894),  PP-  485  et  seq.;  cf.  supra,  chap.  i. 

6For  the  Latin  Dc  Arreis,  (On  Commutations) ,  tide  Title  II  of  the 
Canones  Hibernenses,  in  Wasserschleben  139-140,  who  allocates  them 
to  about  the  fifth  century  and  connects  them  with  the  secular  laws. 
Cf.  Seebohm,  Tribal  Custom  101  et  seqq.,  which  contains  explanations 
of  Irish  terms  in  these  canons,  and  adds  supplementary  matter  from, 
other  Irish  sources.  Cf.  a  general  provision,  of  ca.  A.  D.  475  (?),  in 
Watkins,  op  cit.  587.  For  better  explanations  of  Irish  terms  used  in 
the  Latin  De  Arreis  and  in  the  old-Irish  treatise  On  Commutations, 
see  the  edition  of  the  latter  by  Kuno  Meyer,  loc.  cit.,  where  a  few , 
comparisons  of  the  two  treatises  are  made;  cf.,  also,  supra,  chap.  i. 
There  is  a  great  need  for  more  detailed  study  of  the  textual  relation¬ 
ships  of  these  two  treatises  and  of  their  connections  with  Irish  secular 
law,  etc. 

The  heinous  sins  commuted  in  canon  v  of  the  old-Irish  On  Com- 


THE  OPERATION  OF  PENANCE 


429] 


71 


combined,  for  various  periods.  The  similar  old-Irish 
treatise  On  Commutations  would  make  more  available  and, 
naturally,  extend  the  use  of  such  a  system  of  commutations. 
Its  provisions  are  very  interesting  and,  for  the  most  part, 
lax,  as  compared  with  the  severe  Penitential  of  Vinnian. 
The  old-Irish  treatise  On  C ommutations  provides  a  detailed 
system  of  commutations  of  penances  for  longer  periods  in 
terms  of  shorter  periods  of  intensified  genuflections,  pros¬ 
trations,  psalm-singing,  vigils,  scourging  and  peculiar  pen¬ 
ances,  sometimes  separately  and  sometimes  in  combination. 

These  commutations  and  penances  are  grouped  as  fol¬ 
lows!  in  this  old-Irish  treatise:  “  Arrea,  (Commutations), 
for  Saving  A  Soul  from  Hell;”  “Arrea  for  Fasting;” 
“An  Arreum,  (A  Commutation),  for  the  Psalms;” 
“Arreum  Triduani” — for  a  three-days’  penance;  “Arreum 
A  uni” — for  a  year’s  penance;  “Arreum  Quinquaginta 
Dierum  ” — for  a  penance  of  fifty  days.  In  contrast,  how¬ 
ever,  to  this  detailed  and  lax  system  of  commutations, 
canon  v  of  this  old-Irish  treatise  has  one  very  severe 
prescription:  that  certain  sins  are  undeserving  of  any  re¬ 
missions  of  penance,  unless  God  Himself  shorten  them 
through  death  or  a  message  of  sickness,  or  (one  redeem 
them)  through  the  work  (penance)  which  a  person  lays 
upon  himself ;  such  (sins)  as  are  parricides  and  man¬ 
slaughters  and  man-stealings  and  brigandage  and  drunken¬ 
ness  and  druidism  and  soothsayings  and  adultery  and  lewd¬ 
ness  and  lying  and  heresy  and  transgression  of  order. 
Further  it  is  to  be  noted  that  many  of  the  above  commuta¬ 
tions  of  the  Latin  De  Arreis  are  much  more  severe  than  the 


mutations  are  penalised  by  seven  years  of  severe  penance  in  the  Latin 
De  Arreis;  vide  Wasserschleben  136.  Cf.  with  the  “  peccata  capitalia” 
of  the  Penitentials,  supra,  chap,  ii  and  with  penances  similar  to  those 
in  the  Latin  treatise  De  Arreis  found  in  other  penitentials  of  the 
severe  group — e.  g.  those  of  Theodore,  Vinnian,  David,  etc.  See  the 
texts  of  these  latter  codes  in  Wasserschleben,  passim. 


ENGLISH  PENITENTIAL  DISCIPLINE 


72 


[430 


corresponding  commutations  in  the  late  English  penitentials. 
It  is  evident,  too,  that  the  old-Irish  treatise  increased  the 
use  of  commutations  as  compared  with  the  effect  of  the 
Latin  De  Arreis  and  the  Penitential  of  Vinnian. 

Summarising  the  data  from  the  above  individual  peniten¬ 
tials,  it  is  evident  that  commutations  to  ecclesiastical  authori¬ 
ties  were  missing  in  the  Penitential  of  Vinnian  and  in  Title 
I  of  the  Canones  Hibernenses,  as  well  as  in  Title  III  of  the 
same.  Commutations  are  found,  in  severe  form  and  for 
merely  a  limited  type  of  offence,  in  the  quotation  ascribed 
to  St.  Patrick  which  Wasserschleben  includes  as  part  of 
Title  III ;  and  also  in  a  canon  attributed  to  an  Irish  synod 
of  ca.  A.  D.  475  (  ?).  The  only  exceptions  to  the  above  are 
the  genuflections,  psalm-singing,  prayers  and  peculiar  pen¬ 
ances  in  both  versions  of  De  Arreis 1  (On  Commutations). 
Provisions  for  the  performance  of  penance  by  substitutes  or 
by  delegation  are  absent,  as  are  commutations  by  pilgrim¬ 
ages,  which  are  to  be  performed  in  addition  to  penances. 


SECT.  5.  CONFESSION  AND  PENANCE  AMONG  THE  WELSH 

In  its  general  outlines,  Welsh  penance  closely  resembled 
that  of  the  Irish  Church.  As  regards  the  practice  of  private 
confession,  the  same  general  arguments  apply  as  for  the 
Irish :  the  Penitentials  were  secret  books,  used  by  the  clergy 
alone;  but  they  provided  penances  for  secret  sins  and  sinful 
thoughts  and  for  sins  committed  by  the  laity,  thus  necessitat¬ 
ing  confession  to  the  priest  by  the  penitent.  There  is  no 
trace  of  public  penance  in  these  Welsh  penitentials.  The 
penances  imposed 2  were  especially  severe,  the  singing  of 


'According  as  the  obscure  Penitential  of  Vinnian  may  have  been 
earlier  or  later  than  the  above  treatises  on  commutations,  the  develop¬ 
ment  of  commutations  in  Ireland  may  have  been  from  severe  to  lax 
or  in  the  reverse  direction.  For  supposed  dates  of  the  above  peniten¬ 
tial  canons  and  of  the  Penitential  of  Vinnian,  supra,  chap.  i. 

*For  practices  connected  with  Welsh  penance,  as  probably  associated 
with  Celtic  ascetic  practices,  vide  supra,  sect.  2,  under  Celtic  practices. 


THE  OPERATION  OF  PENANCE 


431] 


73 


psalms  as  penance  being  allowed  only  for  sins  of  thought; 
no  commutations  were  permitted  by  the  purely  ecclesiastical 1 
canons.;  and  the  payment  of  secular  compositions  was  in 
addition  to  penance.2  As  among  the  English  and  Irish,  the 
performance  of  penance  for  crimes  was  enforced  by  secular  3 
laws,  as  well  as  by  ecclesiastical  discipline. 

SECT.  6.  IN  THE  BRITISH  CHURCH  BEFORE  THEODORE 

The  existence  of  the  practice  of  penance  and  confession 
in  the  British  Church  before  Theodore  is  attested  by  several 
facts.  In  the  first  place,  it  is  well  known  that  this  Church 
was  extended  and  controlled  largely  by  Celtic  missionaries, 
especially  from  Ireland,  who  would  naturally  introduce  a 
system  like  the  Irish,  with  some  possible  modifications,  from 
fiV elsh  usage.'4  Confession  of  laity  to  monks  is  mentioned 


See,  in  particular,  Gougaud,  Les  chretientes  celtiques,  chap,  iii,  sect. 
12;  Lloyd,  J.  E.,  History  of  Wales,  (2  vols.,  London,  1911,  2d.  ed., 
1912),  passim ;  Willis-Bund,  J.  W.,  The  Celtic  Church  of  Wales,  (Lon¬ 
don,  1897),  passim;  Newell,  E.  J.,  History  of  the  Welsh  Church, 
passim.  There  is  excellent  material  on  Welsh  ascetic  practices  in  the 
last  three  works,  particularly  as  connected  with  monasteries  in  early 
Wales.  Valuable  legendary  material  is  also  to  be  found  in  Rees, 
Lives  of  the  Cambro-British  Saints,  passim,  as  bearing  on  penances 
performed  and  prescribed  by  Welsh  saints,  etc. 

For  general  penances  on  secret  sins  and  sinful  thoughts,  applying 
to  both  clergy  and  laity :  P.  Dav.,  cans,  iii-vi,  viii-ix,  xiii-xiv  and  xvi. 
Cf.  Syn.  Br.,  cans,  i  et  seqq.,  in  Wasserschleben  103  ;  Syn.  Viet.,  cans,  i 
et  seqq.,  especially  can.  ix,  in  Wasserschleben  104. 

JFor  secular  laws  requiring  or  enforcing  penance:  Ancient  Laws  of 
Wales,  (Record  Comm.,  1  vol.,  fob,  London,  1841),  especially  Canones 
Wallici  or  Legg.  Wall.,  xliv  et  seqq.,  on  p.  843;  similar  secular  pro¬ 
visions  in  Wasserschleben  124  et  seqq.,  cans,  xli,  xlvi,  lxv ;  and  Cod. 
Bigot.,  cans,  lix  et  seqq.,  in  Wasserschleben  131-132  and  135-136.  Can. 
xlvi  definitely  mentions  voluntary  confession  to  a  priest. 

2  On  the  secular  origin  of  the  Canones  Wallici,  supra,  chap.  i. 

3 For  the  payment  of  composition  in  addition  to  penance,  vide  P. 
Dav.,  can.  vi,  on  fornication,  (Wasserschleben  101). 

^Especially  near  the  Welsh  border.  On  the  Celtic  missionaries  and 
practices,  vide  Watkins,  op.  cit.  537  et  seqq.,  688  et  seqq.,  620  et  seqq., 
755  et  seqq.  and  passim. 


74 


ENGLISH  PENITENTIAL  DISCIPLINE 


[432 

several  times  in  the  Life  of  S.  Columba ,  by  Adamnan;1! 
in  the  Collectio  Hibernensis ,2  which  was  probably  used  by 
Celtic  missionaries  in  England;  and  in  connection  with  the 
labours  of  St.  Cuthbert,3  as  well  as  in  many  later  sources.* 
Penance  may  well  have  been  administered  from  the  Irish 
penitentials  and  penitential  canons  previously  mentioned  or, 
in  some  sections  near  the  Welsh  border,  from  Welsh  peni¬ 
tential  canons.  The  chief  penitential  code  used  may  have 
been  the  Libellus  Scottorum  mentioned  in  the  preface  to  the 
Penitential  of  Theodore.5 

Concerning  the  existence  of  public  penance  in  the  British 
Church  before  Theodore,  the  general  denial  has  already 
been  mentioned.6  The  chief  evidence  for  this  denial  is  the 
familiar  remark  in  the  Penitential  of  Theodore,  Book  i, 
canon  xiii,  section7  4:  “  Reconciliation  has  not  been  estab- 

1  Edition  of  Reeves,  pp.  xliii,  lxxvi,  I,  30,  cited  by  Hanna,  article 
“  Penance,”  in  Cath.  Ency. 

lColl.  Hibcrn.,  Lib.  xlvii,  ed.  Wasserschleben,  (Giessen,  1874,  2d. 
ed.,  Leipzig,  1885). 

3  Vide  Bright,  Early  English  Church  240;  cf.  239,  after  Bede;  text  in 
Watkins,  op.  cit.  632. 

AVide  Bridgett,  Holy  Eucharist  I,  227  et  seqq.;  cf.  the  references 
given  supra,  chap,  ii,  sections  on  the  directing  of  penance  and  develop¬ 
ment  of  private  penance. 

5  On  the  identity  of  this  code,  infra,  chap,  iv;  cf.  Watkins,  Hist,  of 
Penance  651. 

G  Lea,  Auricular  Confession  II,  74;  Rauschen,  Buszsakrament  191 ; 
Hergenrother,  KG.  I,  702;  Wasserschleben  16,  30  et  seqq.,  197;  Funk, 
in  KLex.,  II,  1575;  Schmitz  and/H.  and  S.,  passim ;  Liebermann,  Gesetze 
dcr  Angclsachscn  II,  618;  Ludwig,  in  AKKR.,  vol.  83  N.F.,  (1903), 
p.  223.  Liebermann,  loc.  cit.,  remarks  that  the  North,  which  introduced 
the  custom  and  the  word  for  penance  from  the  Anglo-Saxons,  kne\V 
only  private  penance.  Vide  supra,  ch.  ii,  sects.  1-3. 

7  In  some  versions  can.  viii,  sect.  4;  vide  Wasserschleben,  30,  197; 
cf.  Schmitz  I,  535  and  H.  and  S.  Ill,  187.  In  those  versions  which 
contain  only  the  second  book,  this  chapter  appears  as  c.  xv  of  that 
book;  vide  H.  and  S.,  loc.  cit.,  n.  59.  Cf.  text  in  Watkins,  op.  cit.,  634 


THE  OPERATION  OF  PENANCE 


7  5 


433] 

lished  publicly  in  this  province,  because  penance  is  not 
public.”  This  view  has  been  questioned  by  Pi j per  1  and 
Kliefoth,2  who  consider  that  public  penance  was  practised 
in  Great  Britain  both  before  and  after  Theodore.  But  the 
evidence  adduced  by  Pi  j  per  refers  to  Theodore  and  the 
period  after  him;  while  the  more  significant  passages  cited 
by  Kliefoth  and  by  Watkins  have  been  shown  to  refer  to 
isolated,  untypical  cases  3  only.  Hence,  it  would  seem  that 
the  arguments  are  still  valid  against  the  existence  of  public 
penance  in  England  before  the  time  of  Thodore.  As  we 
shall  see,  however,  important  reasons  make  it  necessary  to 
separate  the  history  of  this  institution  into  these  two  periods. 

SECT.  7.  PENANCE  AND  CONFESSION  DURING  THE  TIME  OF 

THEODORE 

Several  passages  in  the  Penitential  of  Theodore  may  pos¬ 
sibly  mean  that  he  introduced  parts  of  public  penance. 
Book  i,  canon  xiii,  in  addition  to  the  previous  citation  on  re¬ 
conciliation,  mentions  the  custom  of  the  Romans’  reconcil¬ 
ing  within  the  apse,  reconciliation  being  by  the  bishop  and 
after  penance  has  been  finished.4  A  description  of  the 
ceremonies  of  imposition  and  of  reconciliation  by  the 
bishop  is  entirely  lacking,  as  well  as  an  “  or  do  ”  at  the 
beginning  of  the  Penitential.  In  view  of  the  fact  that  these 

1  Pijper,  Bate  en  Biecht  II,  42-44,  after  P.  Th.,  Alcuin,  Laws  of 
Ethelred,  the  Synod  of  Clovesho  and  P.  Egb. 

2  Kliefoth,  Liturgische  Abhandlungen,  2  vols.,  (1854),  as  cited  supra, 
sect.  2. 

For  Theodore’s  position  on  this,  vide,  also,  Watkins  op.  cit.,  634  et 
seqq.,  650. 

3 Vide  supra,  for  references;  also  Watkins,  op.  cit.  634-635  and  647  et 
seqq. 

4  Wasserschleben  197  and  references  in  Schmitz  and  H.  and  S.,  cited 
supra. 

But  the  priest  may  reconcile  in  necessity:  P.  Th.,  lib.  i,  can,  xiii, 
sect.  3 ;  cf.  Watkins,  locc.  citt. 


ENGLISH  PENITENTIAL  DISCIPLINE 


76 


[434 


ceremonies  were,  apparently,  unknown  to  the  earlier  Celtic 
Church  in  England,  just  being  reorganised  by  Theodore,  it 
would  seem  absolutely  necessary  for  him  to  describe  them 
somewhat  fully,  if  he  were  introducing  them;  but  he  does 
not  even  touch  upon  them.1 

In  canon  xi,  section  2  5,  there  is  a  possible  reference  to 
the  penance  of  exclusion  from  the  church-building  for  here¬ 
tics;  and  in  canon  ix,  section  5,  a  plainer 3  penance  for 
notorious  adultery  by  the  clergy;  while  canon  iv,  section4  6 
apparently  provides  this  penance  for  involuntary  homicide. 
The  plainest  reference  is:  in  sections  of  canon  v,  directed 
against  heretics,  for  whom  it  prescribes  four  years  outside 
of  the  church,  six  years  among  the  “  auditores  ”  and  two 
more  without  communion ;  5  or,  in  another  place,  three  years 


JOf  course  they  may  have  been  described  in  the  pontificals  or  service- 
books  used  by  bishops  in  the  time  of  Theodore,  as  the  bishops  conducted 
such  ceremonies;  vide  supra ,  chap,  ii,  under  public  penance.  Such  cere¬ 
monies,  at  least  in  part,  are  described  in  later  pontificals  that  were 
used  in  England  from  Egbert  of  York  forward.  Vide  Bridgett,  Holy 1 
Eucharist  I,  227  and  infra,  sect.  8,  for  the  Pontifical  of  Egbert ;  also 
infra,  for  other  pontificals. 

*  Wasserschleben  196;  Schmitz  LI,  553;  H.  and  S.  Ill,  186.  The  pass¬ 
age  in  sect.  2  is  “  exterminabitur  ab  ecclesia”  for  heretics. 

3  Wasserschleben  194,  agreeing  with  Schmitz  II,  552  and  H.  and  S.  Ill, 
183:  “projiciatur  extra  ecclesiam  et  poeniteat  inter  laicos  quamdiu 
vixerit.”  The  word  “  ecclesia  ”  or  “  church  ”  is  variously  interpreted 
in  such  passages  to  mean  “  congregation  ”  or  “  church-building  ”  or 
the  spiritual  body  or  as  referring  to  full  rights  of  membership ;  vide 
supra,  chap,  ii,  on  controversy  over  public  penance,  and  infra,  chap,  v 
on  use  of  “  ecclesia  ”  in  excommunication  formulae  later  in  England. 

4  Wasserschleben  188,  agreeing  with  H.  and  S.  Ill,  180.  Schmitz  II, 
548  has,  instead,  forty  days’  ‘fast. 

5  Wasserschleben  189-190,  sects.  10,  14,  practically  agreeing  with 
Schmitz  II,  549  and  550,  and  with  H.  and  S.  Ill,  181-182.  The  pen¬ 
ances  mentioned  certainly  mark  off  three  stages  of  penance  prescribed 
before  heretics  may  be  admitted  to  full  rights  of  'Christian  fellowship; 
and  these  stages  certainly  resemble,  in  general,  three  of  the  “  peni¬ 
tential  classes  or  stations”  prescribed  in  the  East,  from  which  Theo- 


THE  OPERATION  OF  PENANCE 


435] 


77 


outside  the  church,  seven  years  in  the:  church  among  the 
penitents  and  two  years  more  without  communion. 

Summarising  the  above  references  in  the  Penitential  of 
Theodore,  we  conclude  that  the  general  denials,  by  most 
modern  writers,  of  the  existence  of  any  part  of  public  pen¬ 
ance  in  England  in  Theodore’s  time  have  been  too  broad. 
There  was  some  penance  resembling  that  in  three  of  the  peni¬ 
tential  classes  or  stations  that  were  a  part  of  public  penance 
in  its  completest  form;  though  such  penances  are  usually 
referred  to  in  very  general,  indefinite  terms  and  are  limited 
in  this  penitential  to  a  narrower  range  of  capital  offences' 11 
than  was  customary  on  the  Continent.  On  the  other  hand, 
a  description  of  the  ceremonies  of  public  penance  is  lacking 
and  these  may  not  have  been  used  in  full  in  the  England  of 
Theodore’s  time. 

On  the  whole,  then,  it  seems  that  penance  at  that  time 
was  mainly  private ;  though  one  finds  some  penitential  prac¬ 
tices  mentioned  that  might  attract  public  attention  and 
humiliation,  such  as  the  relinquishment  of  weapons 2  and 
the  assuming  of  a  monastic  3  life.  The  secular  laws,4  too, 


dore  came.  From  the  fact  implied  in  the  penance  as  mentioned  in  the 
text  above,  i.  e.  that  heretics  were  evidently  denied  communion  for  the 
whole  period  of  twelve  years,  it  would  seem  that  the  phrases  “  ex- 
terminabitur  ab  ecclesia  ”  and  “  projiciatur  extra  ecclesiam  ”  meant  a 
penance  distinct  from,  and  severer  than  deprivation  of  communion 
and  ordinary  penances. 

1  If  Theodore  or  the  compiler  of  his  “  judicia”  intended  to  prescribe 
or  to  secure  the  extensive  practice  of  public  penances  for  capital  of¬ 
fences,  it  is  incredible  that  they  would  have  limited  it  to  the  few  of¬ 
fences  mentioned.  Especially  significant  is  the  omission  of  the  pres¬ 
cription  of  public  penance  for  offences  penalised  by  its  elsewhere :  e.  g. 
incest,  murder  of  priests,  backsliding  of  penitents,  fornication  and 
others;  vide  supra,  chap,  ii,  for  Continental  practices  and  infra,  this 
chapter,  on  the  Dialogus  Egberti. 

2P.  Th.,  can.  iv,  sect.  5  and  cf.  sect.  4;  Wasserschleben  188;  Watkins, 
op.  cit.  634;  H.  and  S.  Ill,  180. 

3P.  Th.,  can.  iii,  sect.  1;  Wasserschleben  187. 

*Vide  Liebermann,  Gesetze  II,  618  and  infra,  chap.  v. 


ENGLISH  PENITENTIAL  DISCIPLINE 


78 


[436 


prescribe  penance  for  many  offences,  but  the  imposing  and 
directing  of  such  penance  were  left  to  the  clergy.1  Confes¬ 
sion  might  be  to  God  alone,  in  case  of  necessity,2  but  was 
regularly  prescribed  to  a  priest 3  or  to  a  bishop.4  Such  jur¬ 
isdiction  is  shown,  according  to  Liebermann,5  by  the  very 
early  use  of  Anglo-Saxon  terms  for  “  confession,”  “  the 
confessor,”  “the  confession  district,”  “to  confess;”  and 
for  “  penance,”  “  to  do  penance  ”  and  the  like.  The  Peni¬ 
tential  of  Theodore  6  also  prescribes  numerous  penances  for 
laymen,  thus  showing  the  extent  of  such  jurisdiction. 


SECT.  8.  CONFESSION  AND  PENANCE  AFTER  THEODORE 

Whether  or  not  public  penance  was  practised  during  the 
time  of  Theodore  or  before  him,  evidence  of  at  least  some 
of  its  traits  or  parts  is  found  in  the  period  after  Theodore. 
Though  some  of  the  penitentials  of  the  .  Theodore-cycle 7 
and  the  Penitential  of  Bede  8  are  silent  or  inconclusive  con¬ 
cerning  public  penance,  some  of  the  works  generally  as¬ 
cribed  to  Archbishop  Egbert  of  York  (ca.  A.  D.  732-766) 

1  Liebermann,  Gesetze,  etc.  II,  618  and  s.  v.  “  Beichte” ,  “Busse”, 
“  Priester”,  “  Bischof  ” ,  etc.  See,  also,  Hanna  and  Thurston,  locc.  citt .; 
and  infra,  chap.  v. 

2  A  Th.,  can.  xii,  sect.  7,  in  Wasserschleben  196;  Schmitz  II,  554;  H. 
and  S.  Ill,  187;  Watkins,  op.  cit.,  635,  cf.  653. 

3  Liebermann,  loc  cit.;  P.  Th.,  lib.  ii,  can.  ii.  Vide  Wasserschleben 
204;  Schmitz  II,  368;  H.  and  S.  Ill,  191-192.  Cf.  the  cited  works  of 
Bright,  Hunt,  Bridgett,  passim. 

*Vide  P.  Th.,  loc.  cit.,  etc.;  Watkins,  op.  cit.,  653. 

5  Vide  supra. 

c  See  references  in  Theodore,  supra. 

7  Cap.  Dach.  is  silent  but  for  can.  xxxiv,  (Wasserschleben  148).  Can. 
Greg.,  cans,  xlviii  and  li,  follow  Theodore;  Wasserschleben  166-167. 
Silent  are:  P.  Mart.,  Conf.  Ps.  Egb.,  Can.  Ps.  Edg.,  Can.  Aelfr.,  Aelfr. 
Pastoral  Epistle;  see  the  editions  in  Wasserschleben  and  in  Thorpe, 
Ancient  Laws,  etc.,  passim  and  discussion  of  authorship  infra,  chap.  iv. 

8  See  the  edition  of  P.  Bede  in  Wasserschleben. 


THE  OPERATION  OF  PENANCE 


437] 


79 


rontain  several  plain  references  ;  asi  does,  also,  the  later 
Penitential  of  pseudo-Egbert.1 

The  most  significant  passages  are  found  in  the  Dialogue  2 
of  Egbert  and  in  his  Pontifical.  Among  other  qualifications 
for  the  priesthood  mentioned  in  the  Dialogue,  as  an  answer 
o  “  Interrogation  XV,”  is  one  that  the  candidate  shall  not 
lave  performed,  public  penance.  This  is  followed  by  an 
especially  plain  case — a  passage  which  provides  that  idola- 
:ors,  magicians,  thieves,  perpetrators  of  homicide,  perjurors 
md  fornicators  ought  not  to  be  admitted  to  communion  nor 
:o  receiving  the  honor  of  former  dignity  unless  through 
public  penance.3  The  significance  of  this  passage  becomes 
still  stronger  when  compared  with  others. 

In  the  Pontifical 4  of  Egbert — a  service-book  f  or  the  use 


1  For  more  ambiguous  evidence  from  Alcuin,  Theodore,  the  Laws  of 
Ethelred,  the  iSynod  of  Clovesho  and  others,  Pijper,  Boete  en  Biecht 
[I,  42-44.  For  Frankish  works,  infra,  this  chapter. 

2  Both  generally  ascribed  to  Egbert ;  vide  Cabrol  et  Leclercq,  Diction- 
laire,  etc.,  (1921),  under  “Egbert;”  H.  and  S.,  Ill,  403;  and  the 
irticles  on  Egbert  in  the  various  encyclopedias  of  theology,  etc. 
rhe  apparent  conflict  between  the  Dialogue  of  Egbert  and  the  so- 
:alled  Excerptiones  Egberti,  noted  by  some,  vanishes  since  the  latter 
las  been  proven  to  be  Frankish;  cf.  Hermann,  in  Fitting’s  Melanges, 
(Montpellier,  1908),  passim. 

For  the  text  of  the  Dialogue :  H.  and  S.  Ill,  403,  followed  by  us; 

Thorpe,  op.  cit.,  passim. 

*The  first  passage  reads :  “  Si  poenitentiam  publicam  non  gessit ;  ” 
while,  below,  follows  the  offences  to  be  punished  by  public  penance: 
‘  Eos  tamen  nisi  per  poenitentiam  publicam  non  oportet  admitti  ad 
promerendam  communionis  gratiam  non  ad  recuperandum  pristinae 
dignitatis  honorem ;  alienum  est  enim  ab  ecclesia  poenitentes  sacrosancta 
ninistrare,  qui  dudum  vasa  fuerant  vitiorum.”  Vide  H.  and  S.  Ill,  410. 

Note  that  Watkins,  op.  cit.  636-637,  cites  a  passage  from  the  Dialogue 
egarding  recurrent  confession,  but  omits  the  passage  concerning  public 
>enance  and  materials  from  the  Pontifical. 

4  For  the  text  of  the  Pontifical :  Greenwell’s  edition,  in  Surtees’  Soc. 
3 ub .,  (Durham,  London,  1854),  with  critical  notes.  Cf.  H.  and  S., 
41,  415;  fragments  in  Martene,  De  ritibus  ecclesiae  II,  214  and  in 
Masked,  Monumenta  ritualia  ecclesiae  Anglicanae  II,  77,  (Oxford, 
(882)  ;  and  scholarly  comparisons  with  other  pontificals  in  the  editions 
f  others  by  Wilson,  Masked,  et  al.,  mentioned  infra. 


8o 


ENGLISH  PENITENTIAL  DISCIPLINE 


[43$ 

of  bishops  that  was  probably  used  by  Egbert  at  York  1 — 
occurs  a  description  of  the  ceremonies  for  public  penitents, 
apparently  modelled  after  Roman  2  usage.  Passages  from 
the  penitential  psalms  used  at  imposition  3  ceremonies  are 
given,  together  with  prayers  for  the  reconciliation  4  of  peni¬ 
tents,  a  prayer  5  over  the  penitents,  a  description  of  the 
ceremony  of  raising  them  from  the  pavement,  further  peni¬ 
tential  psalms,  in  antiphonai  6  chant,  and  absolution.  From 

1  Supra,  for  references  on  authorship. 

2  The  services  in  Egbert’s  Pontifical  are  preceded,  (Greenwell  ed.,  p. 
120),  by  “  FERIA  V.  IN  COEN  A  DOMINI  HOiRA  Vita.  CELEBRA- 
TUR  MISSA  AD  LATERANIS  SIC  INCIPIENS,”  followed  by 
mass.  Egbert  may  have  brought  this  service  back  with  him  from  his 
trip  to  Rome.  For  this  trip,  vide  Cabrol  et  Leclercq,  Dictionaire, 
under  "  Egbert.”  On  its  resemblance  to  the  Gelasian  and  other  forms, 
see  the  various  editions  of  the  pontificals,  infra. 

3“  ORATIONES  ET  PRECES  SUPER  PENITENTiEM  OONFI- 
TENTEM  PECCATA  SUA  MORE  SOLITO  FERIA  IIII.  INFRA 
QUINQUAGESIMAM.”  “  Exaudi  Domine,  preces  nostras,  et  tibi  con- 
fitentium  parce  peccatis,”  etc.  “  Per.”  Then  “  Alia.  Preveniat  hunc 
famulum  tuum,  quaesumus  Domine,  misericordia  tua,”  etc.  “  Alia. 
Adesto  Domine,  supplicationibus  nostris,”  etc.  “  Alia.  Domine  Deus 
noster,  qui  offensione  nostra  non  vinceris  ....  Concede  ergo,  Domine, 
ut  tibi  poenitentiae  excubias  celebretur,”  etc.  “  Per.” 

4“Oratio  ad  reconciliandum  penitentem.  Feria  V.  in  cena  Domini.” 
“  Adesto,  Domine,  supplicationibus  nostris,  et  me,  qui  etiam  miseri¬ 
cordia  tua  primus  indigeo,  clementer  exaudi,”  etc.  Then:  “Alia. 
Presta,  quaesumus  Domine,  huic  famulo  tuo  dignum  poententiae  fruc- 
tum,  ut  Ecclesiae  tuae  sanctae,  a  cujus  integritate  deviaverit  peccando, 
admissorum  reddatur  innoxius  veniam  consequendo.  Per.”  etc. 

5  “  Oratio  super  penitentem,”  by  the  bishop,  in  all  probability :  “  Da 
nobis,  Domine,  ut  sicut  puplicani,”  etc. 

®“  Hie  levas  eos  de  pavimento  his  verbis  dicendo,  canaturque  antifona. 
Ant.  Vivo,  ergo,  dicit  Dominus,”  etc.  “  Psalmus.  Miserere  mei 
Domini. 

Absolvimus  vos  vice  beati  Petri  apostolorum  principis.  .  .  .  Per  eum.  1 
qui  cum  eo  vivit.  Amen.”  “  Domine  sancte,  Pater  Omnipotens. 1 
aeterne  Deus,  qui  per  Jesum  Christum  Filium  tuum  Dominum  nostrum, 
vulnera  nostra  curare  dignatus  es  .  .  .  .  remittasque  omnia  crimina  et 
peccata  universa  condones  .  .  .  .  et  de  tua  misericordia  confidens,  ad 
bona  pacis  premii  tui,  atque  ad  coelestia  pervenire  mereatur,  et  ad 
vitam  aeternam.  Amen.” 


439]  THE  OPERATION  OF  PENANCE  8 1' 

the  extracts  in  our  notes  and  the  full  text  in  Greenwell’s 
edition,  one  perceives  that  the  ceremonies  and  date  of 
public  penance  under  Egbert  closely  resembled  those  pre¬ 
viously  described  1  as  practised  on  the  Continent. 

From  the  above  passages  in  the  works  of  Egbert  of  York 
it  is  clear  that  public  penance  was  prescribed  and  put  into 
practice  by  him  and,  possibly,  practised  outside  of  his  arch¬ 
diocese  as  well.  It  is  apparent  that  it  applied  to  the  sins 
of  paganism,  magic,  false  witness,  homicide,  fornication 
and  perjury.2  There  is  also  a  possible  reference  to  peni¬ 
tential  classes  or  grades  in  Egbert’s  Dialogue,  though  the 
passage  may,  more  probably,  refer  to  the  degrees  of  penance 
for  each  ecclesiastical  degree  of  rank.3  The  scant  atten¬ 
tion  paid  to  public  penance  in  the  Penitential  of  Egbert 
may  have  occurred  because  it  was  already  dealt  with  in 
detail  in  the  Dialogue  and  the  Pontifical.  At  any  rate,  the 
traditional,  general  denials  that  public  penance  existed  in 
Egbert’s  day  seem  to  be  much  weakened'4  by  the  above 
evidence  and  apparently  need  decided  modification. 

Somewhat  full  descriptions  of  the  ceremonies  over  public 

1  Cf.  supra,  chap,  ii,  under  public  penance. 

*“  Interrog,  XV:  “Pro  his  vero  criminibus  nullum  licet  ordinari,  sed 
promotos  quosque  dicimus  deponendos :  idola  scilicet  adorantes ;  per 
aruspices  (et  divinos  atque)  incantatores  captivos  se  diabolo  tradentes; 
fidem  suam  falso  testimonio  expugnantes ;  homicidiis  vel  fornicationi- 
bus  contaminatos ;  furta  perpetrantes ;  sacrum,  veritatis  nomen  per- 
jurii  temeritate  violantes,”  etc.  Vide  H.  and  S.,  Ill,  410;  cf.  Thorpe, 
op.  cit.  323.  Cf.  Interrog.  XIV,  with  its  significant  “  ab  ecclesia  limine 
per  vim  volumus  abstrahi,”  etc.  and  Interrog.  X,  in  H.  and  S.,  Ill, 
407-408. 

*“ Interrog.  XII”,  concerning  the  slaying  of  a  cleric  by  a  layman: 
“  Agat  poenitentiam  secundum  gradus  poenitentiae  constitutes,”  etc. 

4  Watkins,  Hist,  of  Penance,  passim,  omits  the  above  passages  on 
public  penance.  The  so-called  “ Prologue ”  or  “Ordo”  to  Pseudo- 
Bede  II  has  references  pointing  to  public  penance.  But  this  penitential 
is  Frankish ;  see  the  textual  criticism  infra,  chap.  iv. 


82 


ENGLISH  PENITENTIAL  DISCIPLINE 


[440 

penitents  are  found  in  similar  passages  in  the  Pseudo-Egbert, 
Book  i,  canon  xii 1  and  in  the  Modus  Imponendi  Poeniten- 
tiarn  ~  canon  i.  These  passages,  translated  into  Anglo- 
Saxon,3  merely  claim  to  be  descriptions  of  customs  “  across 
the  sea ;  ”  they  are  probably  of  Frankish  origin  and,  in  some 
of  their  details,  represent  attempts  to  innovate.  Because 
of  the  close  connection  between  the  Penitential  of  pseudo- 
Egbert  and  the  similar  collection  by  Halitgar  in  the  Frankish 
Church  of  the  ninth  century,  these  passages  may  have  been 
intended  to  revive  or  further  emphasize  the  practice  of 
public  penance  in  England  during  the  reform  movement  of 
the  late  ninth  and  early  tenth  centuries.4 

Pontificals  5  later  than  that  of  Egbert,  of  which  some,  at 

1  In  Wasserschleben  321-322,  after  P.  Halitg.  lib.  iii,  can.  xiii;  cf . 
Thorpe,  op.  cit.,  365 :  “  Hae  consuetudines  trans  mare  apud  populum 
Christianum  observantur,  id  est,  quod  quilibet  episcopus  sit  in  sede 
episcopali  sua  die  Mercurii,  quem  caput  jejunii  vocamus,  ante  quad- 
ragesimam,  tunc  unusquisque  eorum  hominum,  qui  capitalibus  crimini- 
bus  polluti  sunt,  in  provincia  ista  eo  die  ad  ilium  accedere  debet,  et 
peccata  sua  illi  confiteri ;  et  ille  turn  praescribit  eis  peccatorum  eorum 
emendationem,  cuique  pro  ratione  delicti  sui,  et  ita  postea  cum  illius 
venia  domum  redeunt.  Et  iterum  die  Iovis  ante  pascha  ad  eundem 
locum  omnes  congregabitur,  et  episcopus  super  eos  cantat,  et  (eis)  re- 
missionem  dat,  et  ita  domum  redeunt  cum  episcopi  benedictione.  Hoc 
ita  observandum  est  omni  populo  Christiano;  et  nihilominus  sacerdoti 
diligenter  perscrutandum  est,  quanam  perfectione  poenitens  emenda- 
verit  id,  quod  ei  praescriptum  erat;  et  ita  ei  juxta  illud  remissionerrv 
det.” 

2  Thorpe,  p.  405,  with  further  details  in  cans,  ii,  et  seq. — reconciliation 
by  the  bishop.  No  mention  in  this  or  above  of  penitential  classes 
These  are  all  omitted  by  Watkins. 

*  Vide  supra. 

4  Vide  supra,  chap,  ii,  on  public  penance  in  the  Frankish  Church  and 
infra  chap,  iv,  for  textual  criticism  of  P.  Ps.  Egb. 

5  For  lists  of  pontificals  of  English  and  'Scotch  use :  Henderson,  in 
Surtees  Soc.  Publications  LX  I,  (1873),  especially  pp.  ix  et  seqq.l  I 
Greenwell’s  edition  of  the  Pontifical  of  Egbert,  “Preface,”  (incom¬ 
plete)  ;  and  the  excellent  brief  bibliographies  in  Cabrol  et  Leclercq. 
Dictionnaire,  s.  v.  “Egbert.” 


THE  OPERATION  OF  PENANCE 


Hi] 


83 


east,  were  probably  used  in  England  in  the  pre-Norman 
>eriod,  also  include  references  to  or  descriptions  of  the 
eremonies  of  public  imposition  of  penance  and  public  re- 
:onciliation.  The  Canterbury  Benedictional,1  of  a  date 
>robably  in  the  second  quarter  of  the  eleventh  century,  has 
ull  ceremonies  for  imposing  public  penance  and  for  public 
econciliation;  and  specifically  introduces  these  ceremonies 
rath  the  title  “  Order  for  Those  Performing  Public  Pen- 
tnce.”  In  the  obscure  Benedictional  of  Archbishop 
Robert,2  which  may  be  of  either  English  or  French  use  of 
he  eleventh  century  or  later,  is  found  an  “  Absolution  given' 
o  Penitents  by  the  Archbishop,”  apparently  describing  the 
eremonies  of  public  reconciliation.  Another  pontifical 
/hich  was  more  probably  used  in  England  and  is  now  pre- 
erved  at  Magdalen  College,3  also  contains  full  services  for 
ublic  imposition  and  public  reconciliation.  All  of  these 
iter  pontificals  present  many  points  of  substantial  similarity 


1This  and  the  following  benedictional  are  really  pontificals,  as  they 
)ntain  the  usual  serices  found  in  such  books. 

The  admirable  edition  of  the  Canterbury  Benedictional  by  R.  M. 
Woolley  for  the  Henry  Bradshaw  Society,  (1917),  has  detailed  com- 
arisons  with  other  pontificals  and  critical  notes  which  we  follow, 
he  ordines  concerned  are :  “  Ordo  agentibus  publican  poenitentiam ", 
PP-  I3-i4),  and  a  ceremony  for  public  reconciliation,  (pp.  29-35,  143- 
Id,  150). 

2  For  the  Benedictional  of  Archbishop  Robert,  see  the  excellent  biblio- 
’aphy  of  editions  in  Cabrol  et  Leclercq,  Dictionnaire ,  loc.  cit . ;  and 
abrol,  Uangleterre  chretienne  305-306.  In  the  edition  published  by 
age,  in  Archeologia  XXXIV,  is  found  “  Sermo  Diaconi  pro  reconcilia- 
one  poenitentiumC  in  a  later  hand ;  vide  op.  cit.  122.  Cap.  lxx,  op.  cit. 
;6,  has  an  “  Absolutio  poenitentis  a  preside  danda." 

3  For  the  Pontifical  of  Magdalen  College,  the  edition  by  H.  A.  Wilson, 
r  the  Henry  Bradshaw  Society,  (1910),  has  an  excellent  text  and 
tailed  comparisons  of  various  pontificals.  See,  especially,  the  pre- 
ce.  The  ceremonies  in  question  are  on  pp.  155-156,  (cf.  pp.  284- 
6):  “Ordo  ad  dandam  poenitentiam",  and  “  Reconciliatio  poeniten- 
lfn  in  Cena  Domini.” 


ENGLISH  PENITENTIAL  DISCIPLINE 


84 


[442 


in  the  ceremonies  for  public  penance  to  those  in  the  Ponti¬ 
fical  of  Egbert. 

Let  us  now  summarise  the  conclusions  to  be  drawn  from 
the  above  sources  on  Anglo-Saxon  penance.  From  the  evi¬ 
dence  extant,  it  would  seem  that  Theodore  introduced  a  few 
of  the  penitential  stations  for  a  very  limited  number  of 
special  offences  of  a  heinous  character.  Moreover,  that  the 
assignment  and  ceremonies  of  public  penance  were  further 
practised  from  the  time  of  Egbert,  Archbishop  of  York 
(A.D.  732-766),  to  the  eve  of  the  Norman  Conquest,  prob¬ 
ably  without  more  than  a  fragment  of  the  penitential  sta¬ 
tions,1  if  that.  In  the  absence  of  detailed  descriptions  or 
full  references  to  penitential  stations  or  classes,  it  is  also 
probable  that  public  penanoe  then  consisted  chiefly,  if  not 
wholly,  in  the  annual  ceremonies  celebrated  by  the  bishop. 
Furthermore,  the  absence  2  of  detail  in  some  sources  and 
the  utter  silence  of  several  penitentials  on  them  cannot  be 
explained,  in  the  case  of  the  early  documents,  by  claiming' 
that  such  practices  were  so  well-known  then  as  not  to  re¬ 
quire  description  and  specification  for  the  sins  concerned. 
For,  as  mentioned  3  above,  the  absence  of  public  penance 
before  Theodore  would  necessitate  full  description  of  the 
new  customs. 

As  regards  other  4  public  acts  of  penance  by  the  penitent, 
the  chief  act  of  i this  nature  5  was  the  relinquishment  of  arms, 


1The  class  of  audientes  is  specially  mentioned  in  a  few  cases,  but  for 
isolated  offences.  Exclusion  from  the  church-building— which  may 
correspond  to  the  penance  of  the  “  dentes  "—is  prescribed  in  very  rare 
cases  and  dismissal  from  part  of  the  church-services  is  not  mentioned. 
Vide  supra,  this  section,  passim. 

2  Vide  supra. 

1 Vide  supra,  this  and  the  preceding  section. 

4 1.  e.  besides  the  ceremonies,  etc.,  of  public  penance  in  the  church. 

sFor  others  practiced  among  the  Celts  and  on  the  Continent,  stiprQ, 
chap,  ii,  and  chap,  iii,  the  section  preceding  this. 


THE  OPERATION  OF  PENANCE 


85 


443] 

a  penance  which  was  probably  very  humiliating  in  an  age 
when  the  bearing  of  arms  was  the  universal  mark  of  a 
freeman.  In  the  absence  of  data  we  are  unable  to  conclude 
whether  or  not  the  Anglo-Saxons  had  a  special  place  in  the 
church-building  reserved  for  penitents,  such  as  may  have 
existed  on  the  Continent.2 

Was  public  penance  required  among  the  English  for 
notorious  sins  of  a  specially  heinous  character,  or  was  it  pre¬ 
scribed  for  all  mortal  sins,  whether  notorious  or  secret?  In 
support  of  a  theory  that  public  penance  was  required  for 
secret  mortal  sins,  the  sources  for  pre-Norman  England 
Dffer  no  definite  information.  The  question  is  indeterminate 
for  England,  unless  one  assumes  that  English  practice  fol- 
owed  a  rule  then  quite  generally  practised  on  the  Continent 
'that  all  secret  sins  should  be  expiated  by  private  penance. 
Some  ceremonies  of  public  penance  for  publicly  known, 
heinous  offences  3  were  practised,  however,  from  the  time 
of  Egbert  of  York  (A.  D.  732-766).  Many  of  these  notor- 
ous  offences  were  among  those  usually  dealt  with  in  the 
courts.  Hence  they  would  naturally  offer  excellent  oppor- 
unities  for  the  cooperation  of  ecclesiastical  discipline.  The 

1  Penitential  provisions  of  this  nature  probably  aided  in  the  later 
movement  for  the  “Peace  of  God”  or  “Truce  of  God”,  q.v.  in  the 
■ncyclopedias  of  theology,  etc.  This  connection  of  the  Penitentials 
vith  the  peace  movement  is  very  important,  has  been  somewhat  neg- 
ected,  and  may  furnish  the  present  writer  with  a  topic  for  later  pub- 
ication. 

*  Vide  supra,  chap.  ii.  For  the  administration  of  public  penance  by 
’t.  Aelfheah  or  Aelpheage,  ( ca .  974),  vide  Du  Cange,  s.  v.  “Absolutio,” 
Zeconciliatio.”  Public  penance  as  performed  by  King  Edgar,  (A.  D. 
'59-1075)  is  mentioned  by  Lea  and  Lepicier  opp.  citt.,  passim,  but  is 
isputed  by  Hodgkin,  Hist,  of  England  ....  to  the  Norman  Con- 
Uest>  PP-  358-359. 

3  E  g-,  idolatry,  magic,  homicide,  perjury,  fornication,  theft  are  men- 
'°ned  in  Egbert’s  Dialogue,  ut  supra.  Cf.  a  list  by  Caesarius  of 
Ules  (early  sixth  century),  mentioned  by  Watkins,  op.  cit.  554,  with 
xceptions.  See,  also,  supra,  chap.  ii. 


/ 


86  ENGLISH  PENITENTIAL  DISCIPLINE  [444 

performance  of  public  penance  and  of  other  penitential  acts 
of  a  public  nature  might,  with  excommunication,  constitute 
some  of  the  chief  means  for  such  ecclesiastical  cooperation. 

Another  well-known  ecclesiastical  punishment  for  heinous 
offences  was  excommunication.1  In  the  English 2  laws, 
criminals  penalised  by  excommunication  include  perjurors 
who  undertake  penance;  those  who  live  in  concubinage/ 
those  guilty  of  sodomy ;  magicians ;  devastatators  of 
church-land;  robbers  of  church-property;  thieves;  those  who 
strike  down  a  cleric;  those  guilty  of  high-treason;  those  who 
sell  slaves  into  a  pagan  land;  fugitives  from  justice;  those 
guilty  of  contempt  of  an  ecclesiastical  court ;  renegade  monks 
and  priests  ;  and  those  who  marry  a  monk  or  nun.  Be¬ 
sides  its  strictly  ecclesiastical  features,  excommunication  wa9 
accompanied  by  other  severe  disabilities.  From  the  secular 
sources  and  the  formulae  for  excommunication  used  in  pre- 
Norman  England,  it  would  appear  that  excommunication 
was  used  for  many  grievous  crimes  against  secular  law,  in 
fact  that  grievous  criminals  and  the  excommunicated  seemed 
almost  synonymous. 

'For  ecclesiastical  materials  on  excommunication:  Sagmiiller,  KR., 
I,  82-83,  201,  318,  337,  361 ;  II,  28,  34,  59,  64,  7 1  et  seqq.,  133,  3-20,  325. 
337,  348,  355  et  seqq.  and  his  excellent  bibliographies ;  Schmitz  II,  71, 
73,  245,  491,  430. 

For  England  see,  especially  , Liebermann,  op.  cit.  II,  s.  v.  “Exkom- 
munikation,  Exkommunizirt,”  etc. ;  also  the  texts  of  the  formulae  of  ex- 
communication  in  Liebermann,  op.  cit.  I,  passim.  The  account  in 
Makower,  op  cit.,  is  inadequate  and  indefinite.  Purely  ecclesiastical 
uses  of  excommunication  are  irrelevant  to  the  purposes  of  this  work 
and  are  omitted. 

'Vide  II  Ath.  26  and  I  Edm.  6;  Wih.  3-4,  1;  Synod  of  1102;  I  Edm. 
6,  Exkomm.  V,  2,  VIII,  2  and  XII,  I;  Exkontm.  I,  2;  Exkomm.  IV, 
etc.;  Exkomm.  I,  11,  1,  V,  2,  3  and  VIII,  2;  II  Cn.  39;  Liebermann, 
op.  cit.  II,  s.  v.  “  Diebe "  and  “  Hochvcrrat ;  ”  VIII  Ethr.  5;  Alf.  I,  7> 
Exkomm.  I,  11 ;  VIII  Ethr.  41;  Cn.  1020,  17.  The  preceding  references 
are  to  Liebermann,  op.  cit.  I. 

For  social  and  other  disabilities  of  the  excommunicated,  vide  infra, 
chap.  v. 


THE  OPERATION  OF  PENANCE 


445] 


87 


In  pre-Norman  England,  as  elsewhere,  the  bishop 1  had 
jurisdiction  over  the  imposing  of  penance  for  notorious  of¬ 
fences.  Indeed,  he  is  definitely  mentioned  in  that  capacity 
in  some  of  the  Anglo-Saxon  Laws.2  In  some  cases,  it  is 
true,  the  priest  is  mentioned  as  apparently  imposing  penance ; 
but,  naturally,  such  references  would  be  restricted  to  offences 
not  included  among  the  notorious  offences  that  were  under 
the  bishop’s  power. 

The  forms  of  penan'ce  were  essentially  like  those  found 
in  the  Penitential s  in  general.3  For  extreme  cases  there 
might  be  deprivation  of  arms  or  of  consecrated  burial,  ex¬ 
clusion  from  all  rites  of  the  Church  and  dedication  to  a 
monastic4  life.  Penances  might  be  prescribed  singly  or  in 
varying  combinations  according  to  circumstances,  somewhat 
as  in  other  penitentials ;  and  were  differentiated  for  the  laity 
and  for  the  different  ranks  of  the  clergy.5 

Penance  was  considered  medicinal  as  well  as  punitive, 


lVide  Liebermann,  op.  ext.  II,  s.  v.  “Bischof”  and  under  individual 
offences ;  also  under  “  Gcistliches  Gericht.”  For  the  part  of  the  bishop 
in  the  courts,  infra,  chap.  v. 

2  A  general  provision  is  found  in  EGu.,  Prol.,  2:  “  Tha  woruldbote  hig 
gesetton  ....  swa  hwar  man  wolde  godcunde  bote  gebugan  mid  rihte 
to  bisceopa  dihte  ” ;  vide  Liebermann,  op.  cit.  II,  618  and  I,  129.  On 
incest,  the  late  NPL.,  61,  2,  in  Liebermann,  op.  cit.  I,  384:  “Do  penance 
as  the  bishop  prescribes  ” — “  Bete  swa  biscop  getaece.”  On  treason 
to  a  lord — Alf.  1,  2:  “.  .  .  .  suffer  as  the  bishop  prescribes";  but  cf. 
Alf.  1,  8 — “as  the  confessor,”  (Liebermannn,  op.  cit.  I,  489). 

3  For  the  powers  of  the  priest,  vide  Liebermann,  op.  cit.  II.  v. 
“  Priester,  Geistliche,”  etc. 

For  the  forms  of  penance,  supra,  chap.  ii. 

4  Vide  Liebermann,  op.  cit.  II,  618,  nos.  6-6a,  8  and  s.  v.  “  Exkoni- 
munikation,”  no.  14.  Cf.  ibid.  II,  618,  no.  2,  1  and  I,  184-185,  for  a 
reference  in  I  Edm.  1,  1,  concerning  unchastity  by  a  cleric.  Cf.  supra, 
chap,  ii,  for  general  discussion ;  also  under  individual  crimes  in  Lieber¬ 
mann,  op.  cit.  II. 

5  Vide  supra,  chap,  ii,  for  penitential  references. 


88 


ENGLISH  PENITENTIAL  DISCIPLINE 


[446 

a  fact  shown  by  the  frequent  addition  of  the  words  “  in¬ 
wardly/’  zealously  ”  and  the  like.1  The  words  do  not 
refer  to  secular  expiation  and  therefore  show  that  penance 
was  intended  to  improve  the  evil-doer  morally.  Accord¬ 
ingly,  penance  rises  with  -the  gravity  of  the  deed  and  not 
alone,  like  secular  compositions,  from  revenge  or  with  the 
rank  of  the  injured.2 

SECT.  9.  COMMUTATIONS  IN  THE  ENGLISH  PENITENTIALS 

The  same  general  principles  for  -the  commutation  or  al¬ 
leviation  of  penance  that  we  have  found  in  other  peniten¬ 
tial  canons,  appeared  in  the  English  penitentials  3  also. 
But,  in  the  application  of  these  principles  and  in  the  forms 
of  commutation  and  redemption,  there  was  considerable  dif¬ 
ference. 

In  the  Penitential  of  Theodore,  general  commutations 4 
are  lacking;  though  canon  xii  provides  for  admission  to 
communion  before  penance  is  completed,  i.e.  in  a  year  or 

1Liebermann,  op.  cit.  II,  618,  nos.  6-6a. 

1  Liebermann,  op.  cit.  II,  618:  “God  does  not  seek  temporal  (space) 
of  penance,  but  the  manner.”  Cf.  ibid.,  nos.  6,  6a-7,  and  Liebermann, 
op.  cit.  I,  591. 

On  fasts,  in  addition  to  the  above  references,  cf.  I.  Cn.  16,  1 — that 
only  penitents  fast  also  between  Easter  and  Pentecost,  in  Liebermann, 
op.  cit.  I,  29 7. 

3  The  basic  principles  for  commutation  are  best  seen  in  P.  Egb.,  Prol., 
( Wasserschleben  231-232,  Schmitz  II,  662-663,  H.  and  S.  Ill,  417), 
where  penance  is  to  be  according  to  condition  (rich  or  poor),  or  ac¬ 
cording  as  one  is  free  or  slave;  or  according  to  age,  knowledge,  rank 
(if  a  cleric);  whether  married  or  unmarried;  the  quality  of  the  sins 
and  the  doers;  their  habit,  motive  and  the  like.  Cf.  P.  Egb.,  can.  v, 
sect.  21,  in  Schmitz  II,  666;  also  the  list  of  penances  in  P.  Egb.,  Prol., 
loc.  cit.,  after  the  Benedictine  Rule. 

*  Commutations  and  redemptions  in  the  sense  of  money  paid  to  eccle¬ 
siastical  authority  for  such  purposes. 

Psalms  are  prescribed  for  minor  sins  of  neglect  of  ecclesiastical  ser¬ 
vice;  vide  P.  Th.,  passim. 


THE  OPERATION  OF  PENANCE 


447] 


89 


six  months.1  It  is  true  that  the  same  penitential  allows 
composition  paid  to  secular  authority  to  count  as  a  means 
of  alleviating  penance;  for  canon  iii,  sect.  3,  concerning 
theft,  allows  a  shortening  of  penance  for  having  paid  com¬ 
position  or  made  restitution.2  'Moreover,  in  canon  iv,  sect. 
1,  concerning  homicide  for  revenge,  penance  may  be  cut 
in  two  by  paying  secular  compensation  to  the  kindred.3 

As  regards  the  above  citations,  however,  it  will  be  seen 
that  they  apply  to  special,  isolated  sins:;  that  the  additional 
penance  to  be  performed  in  case  composition  has  not  been 
paid  may  justly  be  regarded  as  a  punishment  for  failing  to 
satisfy  or  yield  to  the  secular  law ;  and  that  thus  the  Peni- 
tentials  served  as  powerful  means  for  reinforcing  the  some¬ 
what  weak  secular  authority.'4  'More  important,  because 
more  general,  is  the  provision  in  canon  vii,  sect.  5,  that 
twelve  “  triduana  ”  be  measured  for  a  year.5  This  passage 
is  apparently  borrowed  from  an  Irish  source;  is  merely 
praised  by  Theodore,  not  prescribed ;  and  the  following  pas¬ 
sage  in  Theodore  definitely  states  that,  in  borrowing  from 
the  “  libellus  Scottorum,”  Theodore  sometimes  increased, 
sometimes  alleviated  its  penances. 

In  the  Penitential  of  Egbert 6  there  appear  very  import- 


1  Wasserschleben  196;  cf.  Cap.  Dach.,  xxvi,  Can.  Greg.,  cxxiii,  P. 
Mart.,  ix  and  Ps.  Cumm.,  xiv,  6. 

*  Wasserschleben  187,  agreeing  with  other  editions.  Cf.  Can.  Greg., 
xciv;  P.  Egb.,  x,  5;  Ps.  Cumm.,  iv,  v. 

3  Wasserschleben,  loc.  cit.  Cf.  Cap.  Dach.,  clvi;  P.  Mart.,  li,  7.  For 
details,  infra,  chap.  vi. 

iCf.  infra,  chap.  v. 

6  Wasserschleben  191  and  cf.  infra,  chap.  iv. 

“Ecclesiastical  laws  passed  by  mixed  synods  and  found  in  the  secular 
collections  also  allow  for  alleviations.  Vide  VI  Ethr.,  52-53;  II  Cn., 
68,  1,  10;  VI  Ethr.,  10,  2,  according  to  intent,  age,  sickness,  weakness 
and  the  like;  cf.  Liebermann  II,  618,  .y.  v.  “  Ponitenz,”  nr.  4,  and 
Liebermann  I,  259.  On  the  use  of  money  for  commutations,  infra ;  also 
ch.  v. 


90 


ENGLISH  PENITENTIAL  DISCIPLINE 


[448 

ant  provisions  for  commutation  by  money  redemptions, 
alms,  genuflections,  scourging,  the  singing  of  psalms,  and 
the  like.1  But  these  are  intended  for  those  who  cannot  per¬ 
form  penance  in  the  rigid  fashion  prescribed  elsewhere  in 
that  penitential.2  Moreover,  in  estimating  the  severity  of 
these  money  redemptions,  one  must  bear  in  mind  the  far 
greater  purchasing  value  of  money  in  that  day.  According 
to  an  estimate  by  Hodgkin,3  the  purchasing  value  of  money 
then  was  fully  twelve  times  that  in  1905. 

But  the  Penitential  of  Egbert  provides  that  “  those  who 
do  not  know  psalms  and  cannot  fast,  give,  for  one  year 
(penance)  on  bread  and  water,  XXVI  shillings  (Latin 
solidi )  in  alms,  besides  fasting  one  day  in  each  and  every 
week  up  to  nones  and  another  up  to  vespers  and  in  the 
three  quarantines;'4  but  that  penance  is  less  severe  in  the 
second  year.  The  following  section  5  also  makes  the  same 

1Vide  Schmitz  II,  671,  can.  xiii,  sect.  11;  cf.  Wasserschleben  247-248, 
244-246  and  notes ;  H.  and  S.  Ill,  429-430.  The  following  can.  xvi — - 
“  Dictis  S.  Bonifacii,”  (in  Wasserschleben  246,  Schmitz  II,  672),  on 
how  seven  years  may  be  expiated  in  one,  is  regarded  by  the  editors  as 
a  spurious  interpolation. 

2 Can.  xiii,  sect.  11,  in  locc.  citt,  supra ;  “Item  qui  autem  quod  in 
penitentiale  scriptum  est  inpleter  potuerit,  bonum  est,  qui  autem  non 
potest,  consilium,  damus  misericordiae  Dei,”  etc.  Cf.  can.  vii,  sect.  4. 
for  breaking  fast,  in  Schmitz  II,  667;  also  cf.  can.  x,  sect.  3  et  seq. — 
composition  for  theft — in  Schmitz  II,  669. 

3  Vide  Hodgkin,  Political  History  of  England ,  etc.,  I,  232-235,  after 
Chadwick,  Anglo-Saxon  Institutions.  Cf.  Liebermann,  op.  cit.  II,  .y.  V. 
“  Geldrechnung,”  etc. 

4 Wasserschleben  245;  H.  and  S.  Ill,  429:  “Qui  vero  psalmos  non 
novit  et  jejunare  non  potest,  pro  uno  anno  in  pane  et  aqua  donat  in 
elimosinam  solidos  XXVI.  et  in  unaquaque  hebdomada  uno  die  jejunet 
usque  ad  nonam  et  alium  usque  ad  vesperum  et  III  quadragesimis, 
quantum  sum.it,  penset  ea  tribuet  in  elymosinam.  In  secundo  anno 
remissior  penitentia  est”;  omitted  in  Schmitz  II,  667  but  on  p.  671. 

5  Wasserschleben  245;  H.  and  S.  Ill,  430;  Schmitz  II,  671,  sect.  1: 
“ ....  in  secundo  anno  XX  solid.,  pro  tertio  anno  XVIII  solid.,  id 


THE  OPERATION  OF  PENANCE 


449] 


91 


provision  for  the  first  year  and  adds  the  succeeding  prescrip¬ 
tions  for  those  who  cannot  perform  penance:  “  ....  in 
the  second  year,  XX  solidi,  for  the  third  year,  XVIII  ”,  a 
total  of  sixty-four  solidi  or  shillings  for  the  first  three 
years. 

Even  if  the  rate  were  considerably  reduced  for  the  re¬ 
maining  time  for  homicide,  for  example,  the  total  penance 
would  be  somewhat  severe,1  when  one  considers  that  it  was 
in  addition  to  a  fairly  heavy  secular  compensation.  The 
dangers  of  abuse  in  favoring  rich  men  will  be  discussed 
later.  For  the  average  person  of  that  period,  the  money 
redemptions  may  justly  be  considered  severe;  and  one  must 
remember  that  considerable  fasting  and  bodily  suffering 
were  still  retained.2 

In  the  penitential  generally  ascribed  to  Bede,  canon  i, 
occurs  a  passage  on  general  alleviation  or  discretion,  pre¬ 
scribing  penance  according  to  age,  sex,  condition,  status, 
person  and  motive.  The  forms  of  penance  are  described  as, 
“  according  to  some,  abstaining  from  food,  according  to 


sunt  solid.  LXIIII.  Potentes  homines  pro  culpis  criminalibus  faciant, 
ut  Zacheus  ait :  Domine  omnium  bonorum  meorum  dimedium  do  pau- 
peribus;  sit  aliquit  injuste  abstuli  in  quadruplum  reddam,  et  de  man- 
cipiis  suis  dimittat  liberos  et  captivos  et  a  quo  die  desinit  peccare,  non 
desinat  communicare.”  But  note  carefully  the  following  can.  xiii : 
“  Qui  per  corpus  peccat,  per  corpus  emendat,  hoc  est  jejuniis  et  vigili- 
bus  et  orationibus  ad  Dominutn  (or  Deum),”  and  the  following  pres¬ 
cription  of  “  percussiones”  with  prayers  and  psalms,  according  to  the 
season.  The  italics  are  ours.  The  order  in  'Schmitz  II,  671  is  much 
different  but  the  content  is  practically  the  same. 

1  For  homicide,  adultery,  perjury,  fornication:.  P.  Egb.,  can.  i :  if  a 
layman,  four  years;  with  higher  penance  for  the  clergy.  Vide  W'as- 
serchleben  233;  H.  and  S.  Ill,  419.  Cf.  can.  ii,  for  false  witness  and 
theft:  if  by  a  layman,  one  year;  if  by  the  clergy,  higher;  vide  Was- 
serschleben  234.  In  can.  iii,  for  parricide:  seven  or  fourteen  years, 
with  exile.  In  can.  iv,  sect.  3,  for  incest  with  one’s  mother — fifteen 
years,  etc.  In  can.  iv,  sect.  10,  for  homicide  by  the  clergy — ten  years. 
See  the  texts  in  the  edition  by  Wasserschleben. 

2  Vide  supra. 


92 


ENGLISH  PENITENTIAL  DISCIPLINE 


[45° 

others,  by  giving  aims,  .  .  .  prayer  with  genuflections  and 
stations  of  the  cross,  the  psalms.”  1  This  chapter,  with 
the  fuller  canon  ii,  were  probably  the  sources  for  very 
similar  portions  of  the  prologue 2  to  the  Penitential  of 
Egbert.  The  specific  prescriptions  that  follow  do  not  use 
the  term  “to  fast”  (Lat.  “  jejunare”),  but  simply  that 
for  “  doing  penance  ”  (Lat.  “  poenitere  ”) .  Specific  money 
redemptions  to  be  paid  to  the  Church  are  lacking  in  the 
genuine  text,  though  found  in  the  appended  later  additions 
— canons  ix-xii.3  Hence,  in  contrast  to  the  Penitential  of 
Egbert,  that  of  Bede  did  not  encourage  money  commuta¬ 
tions  as  an  important  means,  of  penance;  though  the  pay¬ 
ment  of  secular  compositions  is  enforced,  as  elsewhere,  as  a 
requisite  for  alleviation  of  penance  in  cases,  of  fighting. 

In  the  Frankish  Penitential  of  pseudo-Bede  II  occur 
several  passages  granting  commutations  or  redemptions, 
either  in  general  or  for  specified  offences.  The  most  im¬ 
portant  provision  is  in  capp.  xli-xlix,  after  the  precedents 
of  Egbert  and  of  Regino  of  Priim,  with  a  few  comparatively 
slight  variations. 

In  the  Confessional  of  pseudo-Egbert,  after  a  preface 
in  which  it  is  prescribed  that  alms  be  given  in  addition  to 
penances,  canon  i  provides  alleviations  similar  to  those  in 
the  Pseudo-Bede,4  according  to  physical  condition,  age  and 

1  H.  and  S.  Ill,  327,  Wasserschleben  220  and  Schmitz  II,  654  agree, 
with  immaterial  variants  in  spelling. 

2  Cf.  supra,  chap,  i  and  infra,  chap,  iv,  on  its  sources. 

5  Vide  locc.  citt.,  supra,  in  the  editions  by  Wasserschleben,  Schmitz,  etc. 

For  alleviation  of  penance  in  cases  of  fighting,  vide  P .  Bede,  can.  iii, 
sect.  9,  in  Schmitz  I,  560;  cf.  can.  iii,  sect.  11,  providing  composition  in 
addition  to  penance. 

For  provisions  in  Pseudo-Bede  II,  vide  Wasserschleben  261  and 
Schmitz  II,  686-687. 

4  Wasserschleben  303;  Thorpe,  Ancient  Laws,  etc.  345:  “  Potentes  sev- 
erius  judicandi  sunt  quam  humiles,  juxta  sententiam  canonis.” 


THE  OPERATION  OF  PENANCE 


451] 


93 


similar  general  conditions  affecting  the  assignment  of  pen¬ 
ance.  But  it  adds  a  severe  and  significant  remark :  “  That 
the  powerful  must  be  judged  more  severely  than  the  humble, 
according  to  the  sentence  of  the  canon.”  1 

Canon  ii  provides  2  that  those  who  cannot  fulfill  all  that 
is  contained  in  the  penances  ought  to  sing  psalms  with  genu¬ 
flections,  in  proportion  to  the  days  of  fasting  similar  to 
those  described  above ;  3  but  should  fast  at  least  two  days  in 
the  week  up  to  nones.  Provisions  for  money  redemptions 
are  based  upon  an  equation  of  one  penny  for  one  day,  in 
addition  to  a  fast  of  two  days  a  week — one  up  to  nones 
and  the  other  to  vespers.  Following  this  there  occur  the 
equations  of  years  for  solidi  as  in  the  Penitential  of  Egbert ; 
with  a  fast  similar  to  the  above  and  alms  amounting  to  half 
the  penitent’s  food  through  the  three  quarantines.  The 
powerful  or  wealthy  man,  in  expiating  capital  offences,  is 
exhorted  to  give  half  his  possessions  to  the  poor.  At  the 
end  of  the  section  occurs  again  the  severe  admonition  that 
“  He  who  has  sinned  in  his  body,  let  him  expiate  also  by 
his  body,”  by  fasting,  vigils,  prayers,  tears  and  repentance.4 
A  peculiar  form  of  composition  is  found  in  canon  xxii,  for 
certain  forms  of  wounds:  that  the  offender  make  amends 
for  the  wounds,  do  the  work  of  the  victim  until  the  wound 
is  healed,  and  pay  for  medical  treatment,  as  well  as  fast.5 


1  Wasserschleben,  loc.  cit. 

*1  ide  P.  Egb.,  P.  Ps. — Bede,  supra. 

3  Vide  Wasserschleben  304;  Thorpe,  op.  cit.  346. 

iVide  supra. 

5Thorpe  op.  cit.,  352,  Wasserschleben  309:  “  Quicunque  homo  alium  in 
genitalibus  debilem  fecerit,  vel  ei  vulnus  in  faciem,  emendet  ei  vulnus, 
et  opus  ejus  operetur,  donee  vulnus  sanetur;  et  mercedem  medio  solvat, 
et  II  vel  III  legitima  jejunia  jejunet;  si  nesciat  quomodo  id  solvere 
possit,  XII  menses  jejunet:  Quicunque  homo  hominem  occidierit,  III 
annos  jejunet;  si  postea  hominis  cognatis  id  compensare  velit,  tunc 
annum  et  dimidium  jejunet.” 


94 


ENGLISH  PENITENTIAL  DISCIPLINE 


[452 

These  provisions  evidence  the  humanitarian  influence  of  this 
particular  penitential.  Closing  this  chapter  is  a  provision 
for  composition  as  commutation  for  homicide,  similar  to 
that  in  the  Penitential  of  Theodore.1 

In  the  Penitential  of  pseudo-Egbert  (Book  iv,  canons  lx' 
and  following),  there  are  several  important  provisions  for 
money  redemptions.  Canon  lx  provides  that,  if  unable  to 
perform  penance,  one  may  redeem  his  fast  by  piety  and  by 
his  worldly  possessions,2  according  to  a  scale  descending 
according  to  the  relative  wealth  or  poverty  of  the  penitent, 
discrimination  being  in  favor  of  the  poor  or,  at  least,  in 
proportion  to  their  poverty.  In  contrast  to  the  money  re¬ 
demptions  of  other  penitentials  and  to  the  money  compensa¬ 
tions  in  the  secular  laws,  in  both  of  which  the  money  pay¬ 
ments  are  fixed  for  all  classes,  this  chapter  of  the  Pseudo^ 
Egbert  requires  the  rich  to  redeem  the  fast  of  twelve  months 
by  thirty  shillings;  the  next  less  wealthy  class  by  twenty 
shillings ;  the  next  class  by  ten ;  but  the  poor  by  only  three. 
Such  redemptions  may  be  spent  in  three  ways :  Either  given 
directly  to  the  Church,  or  used  in  redeeming  a  slave,  or  in 
alms  to  the  poor.  Canon  lxi  contains  passages  3  which,  fol- 

1  Vide  Wasserschleben  309  et.  seq.,  cf.  P.  Th.  I,  iv,  5. 

2 Wasserschleben  340,  Thorpe  op.  cit.,  385:  “Si  quis  prae  infirmitate 
sua,  vel  mollitie,  jejunium  vel  austeritatem  perferre  nequeat,  quarry 
confessarius  ejus  ei  praescripserit,  ei  permissum  erit  jejunium  suum 
redimere  pietate  et  mundanis  suis  possessionibus :  id  est  ergo,  si  dives 
sit,  pro  XII.  mensium  jejunio,  det  XXX.  solidos,  id  est,  in  sermone 
nostro,  XXX.  scillinga;  si  tantum  facultatis  ei  non  suppetat,  tunc  XX. 
solidos  det ;  si  autem,  tantum  facultatis  ei  non  suppetat,  X.  solidos  det ; 
si  denique  indigens  homo  sit,  ut  X.  (dandi)  facultatem  non  habeat,  III. 
solidos  det;  quia  dives  potest  facilius  XXX,  solidos  dare  quam  pauper 
III.  Legitimus  solidus  semper  est  XII.  denariorum.  Hujusmodi  eleem- 
osynae  tribus  modis  erogandae  sunt :  unus  est,  ut  super  Dei  altare 
deponantur;  alter,  ut  homo  ex  servitute  redimatur,  et  deinde  liberetur; 
tertius,  ut  Dei  egenis  distribuantur.” 

J  Wasserschleben  341;  Thorpe,  Ancient  Laws,  etc.  385. 


THE  OPERATION  OF  PENANCE 


453] 


95 


lowing  the  Penitential  of  pseudo-Bede,  canon  xlvi,  allow 
the  redemption  of  a  day’s  fast  by  one  penny  or  by  two 
hundred  psalms,  with,  genuflections;  and  show's  how  a  fast 
of  seven  years  may  be  redeemed  in  one  by  chanting  of 
psalms  and  partial  fast.1  Canon  lxiii,  also  resembling  sec¬ 
tions  in  the  above  chapter  of  the  Pseudo- Bede,  provides  for 
the  redemption  of  days  or  months  of  fasting  by  masses. 
Canon  lxiii  mentions  twelve  methods 2  for  remission  of 
sins.  Besides  the  above  general  provisions  for  commuta¬ 
tions,  the  Penitential  of  pseudo-Egbert  (Book  ii,  canon 
xxv)  prescribes,  for  petty  theft,  simple  restoration  and 
one  year  of  penance  on  bread  and  water;  or,  in  default  of 
restitution,  three  years  on  bread  and  water.3 

The  pseudonymous  Canons  of  Eadgar,  a  work  really 
compiled  by  an  Anglo-Saxon  canonist,  largely  from  Frank¬ 
ish  sources,4  has  been  assigned  too  great  an  importance  by 
writers  5 (who  deal  with  the  commutation  system.  Originat¬ 
ing  very  late  6  in  the  period  of  the  Penitentials,  it  contains 

1  “Una  missa  VII  dierum  jejunium  quis  redimere  potest;  et  X  (mis¬ 
sis)  III  mensium  jejunium  quis  redimere  potest;  et  XX  missis  VII 
mensium  jejunium  quis  redimere  potest;  et  XXX  missis  XII  mensium 
jejunium  quis  redimere  potest;  si  cum  vero  Dei  amore  pro  se  ipso 
supplicare  velit.” 

1  Wasserschleben  341-342;  Thorpe,  Ancient  Laws,  etc,  385-386;  cf. 
supra. 

*  Wasserschleben  328;  Thorpe,  op.  cit.  372:  “  Si  quis  homo  rem,  medio- 
crem  furatus  sit,  ....  in  pane  et  aque  jejunet,”  etc.  It  resembles 
P.  Ps—TH.,  can.  viii,  sect.  2;  but,  on  this  chapter,  cf.  supra,  chap,  i, 
for  Hormann’s  critical  notes. 

4  On  its  authorship,  see  Hermann  in  Fitting’s  Melanges,  (Montepellier, 
1908),  II,  passim ;  Liebermann,  Gesetze,  etc.  II,  s.  v.  “  Canones  Eadgari,” 
“ Ponitenz "  etc.,  and  I,  “  Einlcitung,”  but  especially  Mone,  Quellen 
und  Forschungen,  ut  supra,  chap,  i,  and  infra,  chap.  iv. 

3 Especially  Schaff  and  other  writers  on  church  history;  see  the  list, 
infra,  “  General  Bibliography.” 

*Cf.  supra — in  the  tenth  century,  whereas  the  bulk  of  important  peni¬ 
tentials  for  Great  Britain  lie  before  the  ninth.  Vide,  also,  infra, 
chap.  iv. 


96  ENGLISH  PENITENTIAL  DISCIPLINE  [454 

several  sections  which  deal  with  commutations  or  with  sub¬ 
stitutions,  sometimes  in  a  manner  distinctly  different  from 
that  of  other  penitentials.1 

After  several  provisions  for  commutations  by  money, 
psalms,  or  masses,  resembling  those  previously  mentioned, 
there  occurs  a  peculiar  passage.2  The  section  “  Of  Power¬ 
ful  Men,”  carries  the  principle  of  commutations  and  sub¬ 
stitutions  to  the  extreme.  After  full  confession,  forgive¬ 
ness  of  enemies,  and  promise  of  cessation,  the  powerful  man, 
“  and  rich  in  friends,”  “  undertakes  penance  with  much 
sighing.”  Laying  aside  his  weapons  and  vain  ornaments, 
he  must 

take  a  staff  in  his  hand,  and  go  barefoot  zealously,  and  put  on 
his  body  woollen  or  haircloth,  and  not  come  into  a  bed,  but  lie 
on  a  pallet,  and  so  do  that  in  three  days  the  series  of  VII  years 
be  dispensed  with  thus:  let  him  proceed  with  aid;  and  first 
let  him  take  to  him  XII  men,  and  let  them  fast  three  days  on 
bread,  and  on  green  herbs,  and  on  water ;  and  get  in  addition 
thereto ,  in  whatever  manner  he  can,  seven  times  CXX  men, 
who  shall  also  fast  for  him  III  days ;  and  then  will  be  fasted 
as  many  fasts  as  there  are  days  in  VII  years. 

3.  When  a  man  fasts,  then  let  the  dishes  that  would  have 
been  eaten  be  all  distributed  to  God’s  poor ;  and  the  three  days 
that  a  man  fasts,  let  him  abandon  every  worldly  occupation, 
and  by  day  and  by  night,  the  oftenest  that  he  can,  let  him  re¬ 
main  in  church,  and  with  alms-light,  earnestly  watch  there, 
and  cry  to  God  and  implore  forgiveness,  with  groaning  spirit, 

‘But  can.  iii,  (Thorpe,  op.  cit.  410),  contains  provisions  for  alleviation 
according  to  age,  physical  condition,  etc.,  like  those  mentioned  supra. 
Can.  xvii  has  a  severe  penance;  but  can.  xviii,  regarding  a  sick  man, 
has  provisions  for  money  redemptions  and  psalms  like  those  of  P.  Ps- 
Egb.,  Conf.  Ps-Egb.,  and  P.  Bede,  supra.  Can.  xix  has  the  method 
for  redeeming  seven  years  in  one,  as  mentioned  supra.  Cf.,  also,  can. 
lxv  (Thorpe,  op.  cit.  401)  :  “the  priest  also  assists  in  the  penance.” 

2  “  Be  Mihtigum  Mannum /'  vide  Thorpe,  op.  cit.,  414-415,  for  A-S. 
The  italics  are  ours. 


THE  OPERATION  OF  PENANCE 


455] 


97 


and  kneel  frequently  on  the  sign  of  the  cross;  sometimes  up, 
sometimes  down,  extend  himself ;  and  let  the  powerful  man 
try  earnestly  to  shed  tears  from  his  eyes,  and  bewail  his  sins; 
and  let  a  man  then  feed  those  three  days  as  many  of  God’s 
poor  as  he  possibly  can;  and  on  the  fourth  day,  bathe  them  all, 
and  shelter  them,  and  distribute  money;  and  let  the  penitent 
himself  employ  himself  in  washing  their  feet,  and  let  as  many 
masses  be  said  for  him  on  that  day  as  can  possibly  be  obtained, 
and  at  the  last,  let  absolution  be  given  him,  and  then  let  him 
go  to  housel,  unless  he1  be  so  highly  criminal  that  he  yet  cannot  ; 
and  then  let  him  at  least  promise,  that  he  ever  henceforth  will 
perform  God’s  will ;  and,  through  God’s  succour,  ever  abstain 
from  every  unrighteousness  to  the  utmost  of  his  power;  and 
his  Christianity  righteously  uphold,  and  every  heathenism: 
totally  cast  away;  both  thoughts  and  habits,  words  and  works, 
diligently  correct;  every  righteousness  promote,  and  unright¬ 
eousness  suppress,  through  God’s  succour,  as  he  ever  most 
diligently  may;  and  to  his  own  great  benefit  he  does  it,  when 
performs  that  which  he  promised  to  God. 

This  is  the  alleviation  of  the  penance  of  a  man  powerful, 
and  rich  in  friends;  but  one  not  possessing  means  may  not  so 
proceed;  but  must  seek  it  in  himself  the  more  diligently;  and 
that  is  also  justest,  that  every  one  avenge  his  own  misdeeds 
on  himself,  with  diligent  ‘  bot.’  Scriptum  est  enim :  Quia  un- 
usquisque  onus  suum  portabit.”  1 


In  summary  of  the  preceding,  it  is  therefore  seen  that 
the  practice  of  commutations  in  the  Penitentials  was  not 
universally  uniform  in  the  group  selected;  that  they  were 
scarcely  ever  used  without  restriction  in  these  penitentials/ 
that  the  general  principles  regulating  the  assignment  of 
penance  in  these  codes  were  often  according  to  general 

'On  this  extract,  cf.  Liebermann,  op.  cit.  II,  618,  5,  after  Thorpe, 
op.  cit.  414.  On  the  unusual  nature  of  these  provisions,  Liebermann 
remarks :  “  Die  Gesetze  haben  nichts  derartiges  ” ;  but  later  adds  “  wohl 
aber  heilt  Almosen  als  Fasten-Ersatz,  Siinden,”  after  Lcgg.  Hn.,  72, 
'2b. -3a.  But  cf.  Liebermann,  op.  cit.  II,  s.  v.  “  Armenptiege.” 


ENGLISH  PENITENTIAL  DISCIPLINE 


98 


[456 


norm's 1  of  authoritative  penitential  canons ;  and  that  the 
possession  of  a  penitent  and  contrite  heart  and  a  determina¬ 
tion  to  lead  a  'better  life  were  required.  But,  in  spite  of 
the  silence  or  minimising  of  commutations  in  the  Peniten- 
tials  of  Theodore,  Bede,2  most  members  of  the  Theodore- 
cycle,3  and  the  late  Modus  Imponendi  Poenitentiam ,4  and 
Canons  of  Aelfric;  and  the  denunciations  of  the  prac¬ 
tice  by  the  Council  of  Clovesho,5  the  practice  of  commuta¬ 
tions  in  England  apparently  became  more  extensive  after 
the  Penitential  of  Egbert. 

Several  cautions,  however,  are  necessary  in  discussing  the 
effect  of  this  system.  First  of  all,  to  what  extent  were 
commutations  used  with  penance  continued,  or  in  addition 
to  penance;  and  to  what  extent  might  they  suffice  alone? 
Again,  how  extensively  were  each  of  the  various  forms  of 
commutations  used  in  these  penitentials?  Furthermore,  in 
summarising  the  effect  of  the  commutation  system,  one  must 
take  into  account  the  relative  viewpoint,  and,  to  some  extent, 
view  the  question  f  rom  the  standpoint  of  the  secular  customs 
of  that  time  as  well. 

In  answer  to  the  first  question,  the  greater  number  of  the 
English  penitentials  did  not  allow  commutations  alone  to 
suffice,6  but  still  required  partial  performance  of  penance, 


*1.  e.  according  to  age  and  various  physical  disabilities.  On  the 
general  regulations  in  other  canons,  supra,  chap.  ii. 

2  In  the  portions  originally  attributed  to  him,  but  found  in  the  later 
additions;  cf.  infra,  chap.  iv. 

3E.  g.  Cap.  Dach.,  Can.  Greg . ;  see  Wasserschleben  edition. 

* Vide  Thorpe  op.  cit.,  405  et  seqq.  Cf.  P.  Egb.,  Conf.  Ps.-Egb.,  P- 
Ps.-Egb.,  Can.  Ps-Edg. ;  the  late  Eccles.  Institutes,  in  Thorpe,  op.  cit., 
466-467.  For  secular  regulations,  etc.,  infra,  especially  chap.  v. 

5  Cans,  xxvi-xxvii.  Vide  Schmitz  I,  148,  after  Harduin;  H.  and  S. 
HI,  371-374. 

6  E.  g.  P.  Egb.  can.  xiii,  sect.  11;  Schmitz  II,  671;  Wasserschleben, 
247-248,  cf.  245-246;  H.  and  S.  Ill,  429-430.  Cf.  P.  Bede,  supra.  Cf. 


THE  OPERATION  OF  PENANCE 


99 


45  7] 

even  by  the  sick,  to  whom  alone  commutations  were  usually 
allowed.  Only  in  relatively  late  penitential©  do  we  find  a 
few  instances  of  commutations  sufficing  in  themselves. 
Even  then,  for  the  most  part,  they  are  merely  alternatives 
to  stricter  provisions  and  usually  of  Frankish  origin,  intro¬ 
duced  from  the  Continent  into  England.  The  forms  char¬ 
acteristically  native  in  the  Anglo-Saxon  penitentials  were, 
apparently,  money  redemptions,  psalms  with  genuflections, 
and,  less  probably,  the  performance  of  penance  by  sub¬ 
stitutes.1 

Turning  now  to  the  question  of  the  frequency  of  each 
form  of  commutation,  we  shall  first  discuss  that  of  money 
redemptions.  Of  the  fortms  of  money  redemptions,  we 
find  the  payment  of  secular  compositions  mentioned  in  prac¬ 
tically  all  of  the  English  penitential©,2  sometimes  in  addi¬ 
tion  to  penance,3  sometimes  as  commutations  for  part  of 
penance.4  While  direct  money  payments  to  ecclesiastical 
authority  are  absent  in  the  Penitentials  of  Theodore  and 
his  cycle,3  and  in  the  original,  early  portions  of  that  of 
Bede;  they  are  found  in  the  Penitential  of  Egbert,  the  later 

Conf.  Ps.-Egb.,  can.  i,  an  especially  severe  penance  (Wasserschleben 
303;  Thorpe,  op.  cit.,  345).  Conf.  Ps.-Egb.,  can.  ii  insists  on  a  fast  of 
two  days  in  addition  to  commutations.  But  notice  especially  the  por¬ 
tion  beginning  “  Qui  per  corpus  peccat,”  etc.,  in  Wasserschleben  304; 
Thorpe,  op.  cit.,  346,  also  referred  to  supra.  Also,  cf.  can.  xxi,  in 
Wasserschleben  309;  Thorpe,  op.  cit.  352.  Cf.  P.  Ps.-Egb.,  lib.  iv, 
cans,  lx  et  seq.,  for  provisions  if  unable  to  perform  penance;  Wasser¬ 
schleben  340;  Thorpe  op.  cit.  385.  For  contra,  can.  lxi,  of  Frankish 
origin;  Wasserschleben  341;  Thorpe,  op.  cit.  385. 

xThe  performance  of  penitential  acts  by  substitutes  is  mentioned,  in 
the  English  groups,  by  the  pseudonymous  Canones  Eadgari  alone; 
vide  supra. 

2Infra,  chaps,  v-vi,  on  secular  compositions. 

3  On  compositions  additional  to  penance,  infra,  chap.  vi. 

4  On  compositions  as  part  commutation,  infra,  chap.  vi. 

5  Except  P.  Sangerman.,  q.  v.  in  Wasserschleben,  passim. 


IOO 


ENGLISH  PENITENTIAL  DISCIPLINE 


[458 

additions  to  that  of  Bede,1  the  Pseudo-Bede,  the  Confes¬ 
sional  of  pseudo-Egbert,  the  Penitential  of  pseudo-Egbert, 
and  the  Canones  Pseudo-Eadgari.  In  all  of  these,  the  rate 
usually  follows  that  of  the  Penitential  of  Egbert,  which, 
as  we  have  seen,  was  severe. 

The  chanting  or  singing  of  psalms  by  the  penitent  is,  in 
general,  found  as  a  commutation  in  most  of  those  English 
penitentials  which  have  also  money  redemptions,  and  absent 
where  those  are  missing.2  As  distinct  from  chanting  of 
psalms  as  penance  for  less  important  sins  3 *  this  commutation 
is  found,  with  genuflections,  in  the  Penitential  of  Egbert; 
the  later  additions  to  that  of  Bede;  the  Penitential  of 
pseudo-Egbert;  the  Pseudo-Bede;  and  the  pseudonymous 
Canones  Eadgari?  Sometimes  the  definite  numbers  are 
taken  from  Frankish  sources,5  sometimes  after  the  Peniten¬ 
tial  of  Egbert.  Commutations  by  prayers  are  also  found 
in  the  same  penitentials,  accompanying  the  above.  Both  of 
these  forms  are  usually  found  in  addition  to  partial  penance, 
or  as  alternatives  to  money  redemptions  or  penance,  probably 
in  cases  where  the  penitent  could  neither  fast  nor  pay.6 

The  chanting  of  masses  by  the  priest,  as  a  substitute  for 

1  Cans,  x  et  seq.,  q.  v.  in  Wasserschleben,  Schmitz,  etc. 

2  Absent  in  P.  Th.,  Cap.  Dach.,  Can.  Greg.,  P.  Mart.,  and,  P.  Bede 

(earlier  portions)  ;  present  in  P.  Sangerman. 

•For  self-pollution,  neglect  of  divine  service,  etc.,  by  the  clergy;  also 
for  unnatural  fornication,  breaking  regulations  on  the  “  unclean,”  vide 
P.  Egb.,  cans,  ix,  sects.  7-1 1,  (Schmitz  II,  669),  xi,  sect.  8-9,  xii-xiii, 
(Schmitz  II,  670).  Cf.  Ps.  Bede,  can.  viii,  sect.  4,  (Wasserschleben 
263,  cf.  Egb.,  ix)  ;  P.  Bede,  can.  ii  sect.  36,  (Schmitz  I,  558)  ;  cf.  Conf. 
Ps.  Egb.,  can.  v,  (Wasserschleben  305)  ;  also  can.  xl,  (Wasserschleben 
3I7-) 

iVide  supra. 

&Vide  supra. 

“But  see  the  general  provisions  granting  discretion  to  the  priests  in 
assigning  penance,  according  to  age,  etc.,  supra,  chap.  ii.  On  partial 
penance,  money  redemptions  and  commutations  in  general,  supra,  chap,  ii- 


459] 


THE  OPERATION  OF  PENANCE 


IOI 


penance  by  another  penitent  is  not  characteristic  of  the  native 
English  penitentials.  It  is  absent  in  the  Penitential  of 
Theodore  and  its  cycle;  in  the  original  portions  of  the’ 
Penitential  of  Bede;  and  in  the  Confessional  of  Egbert,  as 
well  as  in  the  Canons  of  Aelfric  and  the  passages  in  the 
Anglo-Saxon  Laws.  It  is  present  in  the  later  additions  to 
the  Penitential  of  Bede,  in  the  pseudo-Bede,  and  in  the  Peni¬ 
tential  of  pseudo-Egbert.  All  of  these  sections  are  con¬ 
sidered  as  probably  coming  late  in  the  period  studied  and 
from  Frankish  1  sources. 

As  regards  the  use  of  income  fo  the  Church  as  commuta¬ 
tion  for  penance,  careful  regulations  were  passed  by  the 
later  Anglo-Saxon  Laws.2  This  income  was  to  be  used  by 
the  Church  for  spiritual  objects  only.  According  to  VI 
Ethelred,  51,  and  III  C nut,3  54:  “If  money  fine  comes  in 
on  account  of  church  penance,  as  the  wit  an  have  established, 
then  shall  that  ....  serve  for  the  purchase  of  prayers 
and  for  advantage  of  the  poor,  and  for  repair  of  churches; 
and  for  education,  and  for  clothing,  support,  books,  bells, 
and  church-vestments  of  those  who  serve  God  and  never 
for  worldy,  vain  adornments,  but  for  spiritual  purposes.” 
On  the  other  hand,  it  is  very  possible  that  such  laws  were 
necessitated  by  abuses  in  the  use  of  church-income  from 
commutations. 

On  reviewing  the  data  previously  discussed  on  commuta¬ 
tions,  it  is  therefore  evident  that  the  customary,  current  dis¬ 
cussions  of  this  subject  are  extremely  exaggerated,  espec¬ 
ially  because  they  generalize  broadly  for  the  whole  period, 

1  Vide  supra,  on  commutations  in  general  for  references ;  cf.  infra  on 
sources. 

2  Vide  Liebermann  II,  618,  “  Ponitens,”  no.  5a.  Cf.,  also,  .y.  v., 

‘  Armenpflege,”  “  Kirche ." 

•Liebermann  loc.  cit.,  vol.  i,  614,  259.  Liebermann  considers  that  III 
Vn ■  was  later  than  Cnut,  probably  ca.  1095-1135. 


102 


ENGLISH  PENITENTIAL  DISCIPLINE 


[460 

with  little  allowance  for  individual  variations,  especially  in 
very  influential  penitentials,  such  as  those  of  Theodore,  the 
Theodore  cycle,  and  the  original  portions  of  that  of  Bede.1 
Moreover,  in  common  with  many  modern  works  on  the 
secular  laws  of  that  period,  they  utterly  fail  to  consider  the 
relative  severity  of  the  money  redemptions,  as  expressed  in 
terms  of  modern  purchasing  power  ;  and  also  neglect  the 
important  question  of  the  cooperation  of  ecclesiastical  with 
secular  law,  especially  in  the  matter  of  secular  compositions 
in  the  Penitentials.  By  such  neglect,  they  treat  the  mat¬ 
ter  in  an  artificial  manner,  far  different  from  the  actual 
facts.  One  cannot  gain  a  true  picture  of  the  actual  opera¬ 
tions  of  law  in  those  times  by  such  an  arbitrary,  bookish 
separation  of  domains  which  were  closely  linked  in  operation 
and  effect. 

Furthermore,  one  cannot  view  the  commutations  of  that 
period  according  to  the  same  criteria  as  the  question  of  in¬ 
dulgences  in  the  days  of  the  Reformation.  While  making 
due  allowance  for  the  probability  that  the  latter  were  mater¬ 
ially  influenced  by  the  former,  yet,  in  the  operation  of  law, 
the  psychological  reactions  of  people  of  the  two  periods 
towards  commutations  of  penance  were  probably  very  dif¬ 
ferent.  This  follows  from  the  facts  that  money  compen- 
s;ations  constituted  the  usual  secular  penalties  in  the  period 
of  the  Penitentials  while,  by  the  time  of  the  Reformation, 
severe  corporal  punishments  of  various  forms  were  used 
by  the  secular  laws  for  the  chief  crimes.2  On  the  other 
hand,  though  the  commutation  system  was  neither  so  uni¬ 
tor  secondary  literature  on  commutations  in  the  Penitentials,  vide, 
also,  infra,  “  General  Bibliography.” 

’On  the  subject  of  compensations  in  the  secular  laws  of  the  Anglo- 
Saxons,  vide  infra,  chap.  v. 

On  penalties  of  the  'Reformation  period,  see  the  various  well-known 
encyclopedias  of  the  history  of  law. 


THE  OPERATION  OF  PENANCE 


461] 


103 


versal  nor  so  mild  as  often  represented,  yet,  at  least  in  the 
late  Anglo-Saxon  period,  the  tendency  of  later  penitentials 
led  towards  possible  abuses. 

In  those  penitentials  which  allowed  money  redemptions 
of  penance,  the  greatest  fault  was  not  so  much  great  mild¬ 
ness  in  the  penalty,  as  the  discrimination  in  favor  of  the 
rich  or  well-to-do.  Most  of  these  penitentials  allowed  only 
one  rate,  so  high,1  as  we  have  seen,  that  it  could  have  been 
paid  only  by  those  who  were  comparatively  well-to-do.2 
But  in  some  few  chapters  are  found  provisions  for  acerbat¬ 
ing  the  penance  or  commutation  for  the  wealthy,3  or  for  a 
scale  of  money  redemptions  in  proportion  to  the  wealth  of 
the  penitent.4  In  these  few  provisions  the  spirit  is  markedly 
in  contrast  to  the  discriminatory  tendency  of  the  secular 
laws.  i 


1C/.  supra,  under  the  discussion  of  money  redemptions  in  the  Peni¬ 
tential  of  Egbert. 

1  Vide  infra,  chap,  v,  on  secular  discriminations. 

*  See  especially  Conf.  Ps.  Egb.,  can.  i,  ( Wasserschleben  303;  Thorpe, 
°P •  cit.,  345):  “  Potentes  severius  judicandi  sunt,”  etc. 

4  For  a  descending  scale  of  redemptions,  from  rich  to  poor,  see,  espec¬ 
ially  P.  Ps.  Egb.,  lib.  iv,  can.  lx,  in  Wasserschleben  340,  Thorpe,  op. 

cit.,  385. 


CHAPTER  IV 


The  Literary  History  of  the  English  Penitentials 

The  very  prominent  position  of  penance  among  the 
Christian  Anglo-Saxons 1  naturally  favored  the  extensive 
use  of  penitential  codes.  Many  penitentials  and  peniten¬ 
tial  canons  are  extant  which  either  originated  among  them 
or  were  introduced  f  rom  the  Continent  for  use  in  the  English 
Church  in  whole  or  in  part.  For  practical  purposes,  there¬ 
fore,  we  shall  include  in  our  discussion  the  chief  peniten- 
tials  which  were  apparently  used  by  the  Anglo-Saxon 
Church,  whether  native  or  imported.  But  penitentials  will 
be  classed  in  either  of  these  two  divisions  in  order  to  dis¬ 
tinguish  between  native  practices  or  movements  and  those 
which,  either  in  nature  or  degree,  were  innovations  2  from 
abroad. 

Among  the  apparently  native  penitentials  were  those  of 
Bede  and  of  Theodore;  some  of  the  English  Theodore- 
cycle ; 3  and,  possibly,  one  of  the  two  so-called  versions 4 
of  the  pseudo-Bede  or  Compound  Penitential  of  Bede- 
Egbert.  While  the  penitentials  or  similar  sets  of  peniten- 

1  Vide  supra,  chap,  iii,  on  penance  among  the  Anglo-Saxons ;  also, 
infra,  chap,  v,  on  penance  in  the  Laws  of  the  Anglo-Saxons. 

1 C/.  supra,  chaps,  ii,  iii,  on  public  penance,  commutations,  etc. 

s  Vide  supra. 


4  I.  e.,  that  published  by  Albers,  infra,  this  chapter. 
104 


[462 


THE  LITERARY  HISTORY 


105 


463] 

tial  canons  of  foreign  origin 1  included  the  Egbert-cycle,2 
some  versions  of  the  pseudo-Bede,3  the  pseudonymous 
Canons  of  Edgar  f  the  Ecclesiastical  Institutes ,  the  Insti¬ 
tutes  of  Polity ,  the  pseudonymous  Excerptiones  Egberti* 
the  pseudo-Theodore  6  and  similar  late  compilations.  1 

The  best  editions  are  those  of  Haddan  and  Stubbs,  Was- 
serschleben,  and  Schmitz.7  Among  these  the  critical  notes 
and  versions  of  Haddan  and  Stubbs  are  particularly  fine; 
though  they  add  nothing,  in  many  respects,  to  the  excellent 
work  of  the  pioneer  Wasserschleben  and  need  some  minor 
revisions  on  variants  from  the  later  works  of  Schmitz. 

SECT.  I.  THE  PENITENTIAL  OF  THEODORE  AND  ITS 
ENGLISH  CYCLE 

At  various  times  and  by  various  writers,  several  peniten¬ 
tials  have  been  ascribed  to  Archbishop'  Theodore  of  Can¬ 
terbury  ( ca .  668-690).  The  tradition  that  Theodore,  him- 

1  I.  e.,  of  foreign  authorship,  or  largely  from  Frankish  sources  of  that 
period.  For  a  good  brief  sketch  of  the  three  stages  in  the  history  of 
the  Penitentials  in  Great  Britain,  vide  Stubbs,  in  Select  Essays,  I, 
252-253. 

*  The  'Confessional  of  pseudo-Egbert  and  the  Penitential  of  pseudo- 
Egbert,  as  distinct  from  the  compilation  of  conciliar  decisions  known 
as  Excerptiones  Egberti.  For  possible  influence  on  the  pseudo-Bede, 
infra,  that  head. 

3E.  g.  those  of  Wasserschleben  and  Schmitz  infra,  passim. 

*  Vide  infra,  passim,  that  head.  ' 

*  Vide  supra. 

6  Vide  supra,  chap.  i. 

7H.  and  S.  Ill  contains  the  penitentials  of  Theodore,  Egbert  and 
Bede,  which  are  also  found  in  the  edition  by  Schmitz;  while  Wasser- 
schleben’s  edition  contains  also  the  Penitential  of  pseudo-Egbert  and! 
the  Confessional  of  pseudo-Egbert,  after  Thorpe,  as  well  as  the  Theo- 
dore-cycle.  Thorpe’s  texts  of  the  native  penitentials  are  poor  or1 
spurious.  He  adds  the  Penitential  of  pseudo-Egbert,  the  Canons  of 
Edgar,  the  Excarpsus  Egberti  and  the  Confessional  of  pseudo-Egbert  1 
all  as  genuine;  the  Ecclesiastical  Institutes;  and  the  Canons  of  Aelfric. 
On  the  editions  by  Kunstmann,  Hildenbrand,  Berbner,  etc.,  infra. 


I06  ENGLISH  PENITENTIAL  DISCIPLINE  [464 

self,  composed  a  penitential,  is  as  old  as  the  latter  half  of 
the  eighth  century,  when  the  Liber  Pontificalis  and,  after  it, 
Paul  Warnefrid  assert  that  Theodore  “  described  the  sen¬ 
tences  for  sinners — namely  what  each  ought  to  do  in  penance 
and  how  many  years  for  each  and1  every  sin,”  1  etc.  This 
assertion  is  repeated  by  Irish  and  Frankish  penitentials 
from  that  time  forward;  and,  afterwards,  by  Rhabanus 
Maurus,  a  pupil  of  Alcuin,  by  Regino  of  Priim  and  by 
others. 

These  references  to  a  penitential  composed  by  Theodore 
are  offset  by  the  remarkable  silence  of  Bede  on  the  subject ; 
by  the  similar  silence  of  later  English  sources,  except  where 
copied  from  Paul  Warnefrid,  and  by  “  the  fact  that  the 
work  ....  might  easily  be  mistaken  by  later  and  less 
learned  scholars  than  Bede  for  a  direct  work  of  Theodore.”  2 
Yet  there  is  abundant  reason  for  attributing  the  substance 
of  the  work  to  Theodore,  if  not  the  actual  writing.  Hence, 

1,1  Peccantium  judicia,  scilicet  quantos  annos  pro  unoquoque  peccato 
quis  poenitere  debeat,  mirabili  et  consideratione  descripsit.”  Vide  H. 
and  S.  Ill,  173  et  seqq . ;  Schmitz  I,  510  et  seqq.,  3  et  seq.,  109  et  scqq.,  387 
et  seqq.,  119,  144,  177,  510,  320,  557  et  seqq,  and  II,  1 13  and  passim.  Wasser- 
schleben  13-37  has  fuller  citations  from,  the  sources,  including  also, 
e.  g.,  the  Hibernensis,  (8th.  century),  and  later  collections  of  canon 
law.  Vide  infra,  on  individual  penitentials,  for  mention  by  them  of 
Theodore’s  penitential.  Also,  for  references  in  the  Frankish  sources, 
supra,  chap,  i,  passim. 

Numerous,  modern  discussions  of  the  Penitential  of  Theodore  are 
to  be  found  in  manuals  of  canon  law;  those  on  church  history;  and 
those  on  the  institutions  of  penance,  confession  and  the  like.  Vidd 
infra,  “  General  Bibliography,”  for  the  list.  For  the  time  when  they 
were  written,  there  are  especially  good  summaries  in  DC  A.,  Herzog- 
Hauck,  KLcx,  and  Cath.  Ency.  For  critical  remarks  on  the  textual 
relations  of  this  penitential  with  others,  vide  supra,  chap,  i,  the  critical 
articles  cited  on  other  penitentials  by  Fournier,  Hormann,  Seebass, 
Zettinger  and  others ;  also  infra,  on  individual  English  penitentials. 
Watkins,  History  of  Penance  649-650,  has  a  brief  but  usable  summary. 

2  Ralph  De  Diceto,  A.  D.  1200,  copies  from  Paul  whose  words  are 
given  in  extcnso  by  Elmham,  (15th  century)  ;  H.  and  S.  Ill,  173. 


THE  LITERARY  HISTORY 


465] 


107 


it  is  generally  considered  by  present-day  scholars  as  com¬ 
posed  of  “determinations”  or  “judgments”  voiced  by 
Theodore  but  actually  received  by  a  priest  named  Eoda 
from  Theodore  himself,  and  later  edited  by  a  self-styled 
“  disciple  of  the  Umbrians.”  1 

Among  the  several  versions  which  have  been  ascribed  to 
Theodore  by  various  writers,  the  only  version  which  is 
now  generally  accepted  by  scholars  is  that  edited  by  Was¬ 
serschleben,2  Haddan  and  Stubbs,3  and  Schmitz.'4  In  the 
Wassersohleben  edition,  the  Penitential  of  Theodore  is 
edited  from  several  Continental  manuscripts,5  without,  how¬ 
ever,  employing  a  better  and  more  ancient  manuscript 6  in 
England,  published  by  Haddan  and  Stubbs,  with  variants 


1  Discipulus  Umbrensium,”  H.  and  IS.,  Schmitz,  Wasserschleben, 
locc.  citt.,  and  the  modern  authorities  cited  supra,  note  1.  The  sum¬ 
mary  of  arguments  in  favor  of  Theodorian  origin,  even  if  not  direct 
authorship,  is  best  given  by  iH.  and  S.  Ill,  173-174.  Besides  the  above, 
strong  evidence  for  the  composition  by  Theodore  is  found  in  two 
citations  of  Theodore  by  name,  with  borrowings,  in  P.  Egb.  Prol.  and 
can.  v,  sect.  11;  as  also  in  the  Cod.  Can.  Hibern.,  of  which  one  MS.  is 
at  least  of  the  eighth  century.  Vide  H.  and  S.  Ill,  174;  Wasserschle¬ 
ben  loc.  cit.  and  25-26;  and  Schmitz  locc.  citt. 

Watkins  op.  cit.  649-650,  believes  this  “discipulus  Umbrensium”  to 
be  a  disciple  of  the  north-country  teachers  who  is  himself  from  the 
south.  He  has  studied  in  the  north  and  now  commends  the  work  of 
Theodore  to  all  English  Catholics.  Watkins  infers  that,  so  far,  it  had' 
found  vogue  only  in  the  north,  “  where  the  private  system  of  Penance 
would  already  be  employed  so  far  as  there  was  any  practice  of  Penance 
at  all.” 

3  Wasserschleben  182-219. 

3  H.  and  S.  Ill,  173-213,  from  MS.  C.  C.  C.  C.  320,  considered  by 
Haddan  and  Stubbs  as  the  most  ancient  of  all  these  MSS.,  probably  not 
later  than  the  eighth  century.  The  references  to  another  copy  in  this 
MS.  seem  to  indicate  that  it  is  not  the  original. 

*Vide  infra. 

5  Wasserschleben  182,  note  1. 

8  Vide  supra. 


io8  ENGLISH  PENITENTIAL  DISCIPLINE  [466 

from  Was  se rschleben.  In  the  first  volume  of  the  edition 
by  Schmitz,1  still  another  manuscript 2  is  chiefly  followed, 
without  variants,  in  general.  His  edition  has  been  especially 
criticised  by  Albers  and  others,  as  noted  above;  but  it  is 
especially  useful  for  the  index  and  contains  no  very  great 
deviations  from  the  two  other  editions  cited.3  The  second 
volume  of  the  Schmitz  edition,'4  like  that  of  the  first  volume, 
includes  a  list  of  the  manuscripts  also  used  by  Wasser- 
schleben,  but  entirely  omits  mention  of  the  better  manu¬ 
script  used  by  Haddan.  and  Stubbs.  This  volume  of 
Schmitz’  edition,  however,  includes  variants  from  the  other 
manuscripts. 

Besides  the  above  penitential,  which  is  accepted  as  genu¬ 
ine,  there  are  three  other  distinct  works,  with  varying 
titles  and  in  various  editions.  The  pseudonymous  Capitula 
Theodori  5  have  been  edited  by  D’Achery  6  and  by  Mar¬ 
tene  and,  in  a  variant  edition,  by  Kunstmann,  as  Canones 

1  Schmitz  I,  524-559. 

2  Viz.  a.  Cod.  V indob.,  no.  2195,  fol.  2. 

3  For  individual  variants  of  the  three  editions  vide  locc.  citt.,  supra. 

4  Schmitz  II,  543-544.  The  text  is  in  Schmitz  II,  545-556  and  Book  II 
in  pp.  566-580,  apparently  considering  the  two  books  as  of  separate 
authorship.  Schmitz’  critical  remarks  concerning  Book  II  are  on  pp. 
557-565.  The  numbering  of  the  canons  in  Schmitz’  edition  of  Book 
I,  as  well  as  some  of  the  rubrics,  vary  from  that  in  Wasserschleben 
and  in  Haddan  and  Stubbs.  Vide  Wasserschleben  200-202;  H.  and  S. 
Ill,  189-191 ;  and  Schmitz  II,  556,  can.  xvi. 

4  For  excellent  summaries  of  the  following,  vide  H.  and  S.,  Wasser¬ 
schleben  and  Schmitz,  locc.  citt. ;  and  supra,  chap,  i,  for  materials  on 
the  Pseudo-Theodore. 

•In  Spicilegium  IX,  (Paris,  1669),  containing  one-hundred  twenty 
canons,  which  Wasserschleben  reprints  as  one-hundred  seventy-one 
Capitula  Dacheriana.  For  other  reprints :  Labbe  and  Cossart,  Concilia 
VI,  (Paris,  1671,  1875)  ;  J.  Petit,  (Paris,  1 677,  with  others);  and  in  a 
new  edition  of  D’Achery  edited  by  F.  J.  De  la  Barre,  (Paris,  1723), 
with  the  notes  of  Baluze  and  of  Martene.  Martene  increased  them  to 
one-hundred  sixty-eight  chapters  by  adding  from  the  canons  of  the 
Iro-Scottish  monk  Adamnan. 


THE  LITERARY  HISTORY 


IO9 


467] 

Gregorii.  According  to  Haddan  and  Stubbs,1  they  are  “  a 
disorderly  congeries  of  articles,  all  of  which,  with  one  or 
two  exceptions,  are  to  be  found  in  the  work  of  the  Dis- 
cipulus.”  Other  Capitula  Theodori,  edited  by  Petit  and 
Favier 2  are  Frankish  canons  of  much  later  date  than 
Theodore,  coming  down  to  the  tenth  century.  They  con¬ 
tain  very  little  that  is  verbally  akin  to  the  other  works  that 
appear  under  Theodore’s  name,  though  they  apparently  use 
the  Penitential  of  pseudo-Theodore. 

Though  the  above  members  of  the  Theodore-cycle  were 
probably  all  Frankish  in  origin,  the  presence  of  manuscripts  3 
in  England  and  the  translation  of  some  canons  into  Anglo- 
Saxon4 5  may  mean  that  they  found  some  use  there,  even  if 
they  may  have  been  little  used  in  comparison  with  others.5. 
In  using  their  canons  as  evidence  today,  one  must  collate 
very  carefully 6  with  native  penitentials  and  penitential 
materials,  in  order  to  ascertain  what  were  native  and  what 
foreign  customs. 

The  sources  for  the  Penitential  of  Theodore  possess  special 
significance  because  of  their  effect  upon  its  influence  and 
from  their  value  as  sources  of  information  on  contemporary 
practices.  Next  to  the  scriptures,7  Theodore  used  the  cur- 

1Vide  supra. 

2  Vide  H.  and  S.  Ill,  175;  Schmitz  I,  512-513;  Wasserschleben  16, 
119,  145.  Frankish  in  origin,  they  are  partly  translated  into  Anglo- 
Saxon  in  Thorpe,  Ancient  Laws  30 7.  This  compilation  is  similar  to  the 
pseudonymous  Canones  Gregorii  published  by  Wasserschleben;  also,  as 
the  Dicta  Theodori,  by  Schmitz  II,  521  et  seqq.;  cf.  II,  510-521. 

3  Vide  Wasserschleben  16-17,  21,  145,  note  1  and  160,  note  1. 

*Vide  supra,  chap,  i,  on  the  Capitula  Theodori. 

5E.  g.  the  cycles  of  Bede  and  of  Egbert,  q.  v.  infra,  this  chapter. 

*For  examples  of  the  careless  use  of  pseudonymous  works,  see  the 
references  in  the  “General  Bibliography.” 

7  Vide  Wasserschleben  26.  See  the  editions  cited  supra,  chap  i.  Ex¬ 
amples  of  such  borrowing  are  cited  in  the  editions  of  Theodore, 


no 


ENGLISH  PENITENTIAL  DISCIPLINE 


[468 

rent  collection  of  the  canon  laws  by  Dionysius  Exiguus, 
brought  by  Theodore  to  the  English  Council  of  Hertford, 
(ca.  A.  D.  673),  by  which  it  was  officially  adopted.  As  was 
natural  from  his  nativity  and  training,1  he  drew  upon 
Greek  2  practices  as  well.  He  cites  very  frequently  from 
the  Canonical  Letter  of  Basil 3  to  Amphiiochius.  Possibly, 
too,  Theodore  made  some  use  of  the  Novellae  of  Justinian. 
Earlier  British  penitentials  furnished  materials  for  several 
passages  which  are  so  important  as  to  merit  separate  atten¬ 
tion.  In  the  classification  of  sins,  it  is  possible  that  the 
Penitential  of  Theodore  was  influenced  by  the  work  of  Cas- 
sian  4  either  directly  or  through  some  of  the  earlier  British 
penitentials  that  had  used  Cassian. 

From  the  earlier  British  penitentials,  the  Penitential  of 
Theodore  contains  several  borrowings  from  the  Penitential 
of  David  5  and  from  the  synods  of  Brevi 6  and  of  Lucus 
Victoriae ;7  also  numerous  borrowings  or  adaptations  from 

passim,  particularly  in  Book  I.  Wasserschleben  also  notes  parallels 
between  Theodore  and  the  Canoncs  Apostolorurn,  the  Nicene  Council 
and  other  sources ;  vide  Wasserschleben  26  and  passim. 

On  the  Council  of  Hertford,  vide  Bright  Early  English  Church  277 
et  seqq.;  the  text  of  its  acts  in  H.  and  S.  Ill,  118-122;  and  Liebermann, 
Gesetse  dcr  Angclsachscn  II,  .y.  v. 

1  The  list  of  references  on  Theodore  in  Chevalier,  ....  Bio-biblio- 
graphie  must  be  used  with  great  caution  as  many  spurious  works 
are  cited  as  genuine. 

*  Vide  Wasserschleben  195-197,  204-205,  209-210. 

3  Vide  Wasserschleben  27  and  note  1,  193,  19 7,  185,  209,  213;  H.  and 
S.  Ill,  188,  178,  196,  199. 

For  borrowing  from  Gregory  of  Nazianzen:  Wasserschleben  186, 
205;  H.  and  S.  Ill,  179,  193.  References  to  “the  canon”  by  Theodore 
sometimes  refer  to  Basil,  at  others  to  the  Dionysiana. 

4  Vide  supra,  chap,  i,  on  the  sources  for  the  Penitentials. 

5  Wasserschleben  27  and  note  2.  This  influence  may  have  been  direct 
or,  possibly,  through  the  “  libellus  Scottorum.” 

6  Cf.  Wasserschleben  103  and  185. 

7C/.  Wasserschleben  104  and  185. 


THE  LITERARY  HISTORY 


III 


469] 

the  Penitential 1  of  Vinnian.  A  significant  reference  in 
Theodore  is  borrowed  almost  literally  from  Title  II  of  the 
Canones Hibernenses  (“  De  Arreis  ")  and  several  penances 
in  Theodore’s  penitential  resemble  those  of  Title  3  I  of  the 
same  collection.  It  would,  therefore,  seem  that  the  Canones 
Hibernenses  exerted  a  strong  influence  upon  the  Penitential 
of  Theodore.  Though  the  differences'  in  wording  suggest 
that  this  influence  may  have  been  indirect,  through  another 
version  than  that  edited  by  Wasserschleben;  or  that  the  bor¬ 
rower  rephrased  considerably  what  he  borrowed.  In  view 
of  the  similarity  of  substance  but  difference  in  wording  be¬ 
tween  some  sections  of  the  British  and  Irish  penitentials  and 
those  of  Theodore,  just  discussed,  it  seems  probable  that 
they  may  have  been  known  to  Theodore  in  versions  dif- 

*For  important  borrowings  from  Vinnian,  vide  Wasserschleben  118, 
194,  198,  1 16,  1 17.  For  Gildas'  influence,  ibid.  106,  197. 

*Cf.  the  very  important  passage  on  commutations  in  P.  Th.,  can.  vii, 
sect.  5,  in  Wasserschleben  and  H.  and  S.,  with  Can.  Hibem.,  Tit.  II, 
can.  vi  of  “  De  Arreis,”  (Wasserschleben  140).  The  Penitential  of 
Theodore  has  “  Item,  XII  tridnana  pro  anno  pensanda,  Theodorus  lau- 
davit,”  while  Can.  Hibem .„  Tit.  II,  can.  vi  has  “  Arreum  anni  XII 
triduana.”  (The  italics  are  ours).  Also  there  are  frequent  allusions 
to  payment  of  redemptions  by  means  of  slaves,  especially  by  “  ancillas  ” 
among  the  Irish,  in  Can.  Hibern.,  Tit.  I,  cans,  viii,  x,  xi  and  in  Tit.  Ill, 
“  Patricius  dicit”  etc.  Tit.  IV,  cans,  ii,  iii  have  an  equation  of  a  year 
of  penance  with  one  slave,  (Wasserschleben  137,  141,  142).  This  is  re¬ 
markably  like  P.  Th.,  Lib.  I,  can.  vii  (Wasserschleben  191,  agreeing  with 
other  editions)  :  “  De  aegris  (variant  egressis)  quoque  pretium  viri 
vel  ancillae  pro  anno,”  with  an  alternative  commutation.  Cf.  other 
Irish  references  on  commutations,  supra,  ch.  iii. 

Especially  cf.  P.  Th.,  Lib.  I,  can.  iv,  sect.  3 — seven  years  for  homicide 
or  ten,  with  Can.  Hibern.,  Tit.  I,  can.  iii — for  homicide,  seven  years  on 
bread  and  water  or  ten,  (Wasserschleben  136-137,  188,  agreeing  with 
other  editions).  Cf.,  also  a  penance  of  seven  years  on  bread  and  water 
with  one  of  simply  seven  years,  (Wasserschleben  126,  189 — the  latter 
citing  P.  Th.,  can.  xi,  sect.  6).  Cf.,  also  a  penance  of  forty  days  for 
eating  flesh  torn  by  dogs  in  Can.  Hibern.,  Tit.  I,  can.  xiv  (Wasser¬ 
schleben  137)  with  a  similar  sentence  for  eating  flesh  torn  by  beasts  in 
P.  Th.,  can.  vii,  sect.  6,  (Wasserschleben  191). 


I  12 


ENGLISH  PENITENTIAL  DISCIPLINE 


[470 

ferent  from  those  edited  by  Wasserschleben.1  Possibly 
some  of  them  were  known  to  him  or  to  the  “  disciple  of  the 
Umbrians  ”  in  another  compilation  which  may  have  con¬ 
tained  materials  from  some  or  all  of  the  above.  This  leads 
us  naturally  to  discuss  what  is  possibly  another  source  for 
the  Penitential  of  Theodore. 

In  the  preface  2  to  the  Penitential  of  Theodore,  mention 
is  made  of  a  certain  “  hbelhis  ”  of  the  Scots  as  one  of  the 
sources  for  the  Penitential.  Even  more  specific  mention  3 
of  the  same  "  libellus  ”  is  found  in  Book  I,  can.  vii,  sect.  5. 
This  passage  '4  would  seem  to  indicate  that  the  matter  pre¬ 
ceding  it  had  been  taken  directly  from  the  “  libellus  ”,  to¬ 
gether  with  other  5  material.  But  the  passage®  in  the  Peni- 

lVide  supra,  on  comparisons  of  P.  Th.  with  P.  Vinn.,  P.  Gildas,  Syn. 
Viet,  and  Syn.  Brevi.  But,  possibly,  Theodore  may  have  changed  the 
wording. 

*  Vide  Wasserschleben,  H.  and  S.  and  Schmitz  II,  passim. 

*See  the  comparisons  in  the  notes,  supra;  also  supra,  on  commuta¬ 
tions.  For  the  following  quotation,  vide  Wasserschleben  191 ;  H.  and 
S.  Ill,  183.  Schmitz  I,  530  and  II,  650,  alone,  have  the  variant 
"  Degnis  ”  with  variant  note  "  egris,”  in  the  passage  on  commutations. 
It  also  has  a  variant  “  Sanctorum  ”  for  “  Scottorum,”  but  the  latter  is 
found  in  the  preface  in  Schmitz  II,  545. 

Watkins,  op.  cit.  649,  believes  that  the  priest  Eoda,  who  took  down 
Theodore’s  answers  to  his  questions  on  penance,  was  a  "  north-country 
priest  who,  having  in  his  hands  one  of  the  fragmentary  Celtic  peni- 
tentials,  proceeded  to  question  Theodore  seriatim  from  it  and  to  compile 
an  improved  penitential  from  his  pronouncements.”  Watkins  also 
believes  that  the  “  libellus  Scottorum  ”  may  have  been  a  book  preser¬ 
ved  at  Lindisfarne  that  preserved  all  the  traditions;  op.  cit.  651. 

4  “  Ista  testimonia  sunt  de  eo,  quod  in  praefatione  diximus  de  libello 
Scottorum,  in  quo,  ut  in  ceteris,  ilia  aliquando  inibi  fortius  firmavit  de 
pessimis,  aliquando  vero  lenius,  ut  sibi  videbatur,  modum  inposuit 
pusillanimis ;  ”  vide  locc.  citt.,  supra. 

5  Variants  for  “  Scottorum  ”==“  Scorum,”  "Sanctorum,”  vide  H.  ancj 
S.  Ill,  183,  n.  4  and  Schmitz,  loc  cit.  "Ilia”  is  omitted  by  Wasser 
schleben  but  included  by  H.  and  S.  and  by  Schmitz. 

0  Variant  in  a:  lentius;  vide  H.  and  S.  Ill,  183,  n.  6. 


THE  LITERARY  HISTORY 


471] 


113 


tential  of  Theodore  previously  mentioned  is  located  directly 
after  the  significant  borrowings  from  the  Irish  canons  and 
precedes  another  passage  1  in  Theodore’s  penitential  which 
appears,  also,  to  have  been  borrowed  from  the  Canones 
Hibernenses.  Hence  it  would  seem  that  the  “  libellus 
Scottorum ”  used  by  Theodore  included  portions  from  the 
Canones  Hibernenses.  The  passage  that  we  have  cited  f  rom 
Theodore  also  states  that  he  transformed  some  penances  of 
the  "  libellus  ”  by  making  them  sometimes  milder,  some¬ 
times  harsher.  In  conclusion,  therefore,  there  is  some  pos¬ 
sibility  that  the  "  libellus  ”  was  itself  either  the  Canones 
Hibernenses  or  a  compilation  that  included  the  passages 
from  the  Irish  canons  that  were  afterwards  borrowed  by 
Theodore. 


The  fact  that  the  penances  were  thus  modified  makes  it 
almost,  if  not  quite  impossible  to  trace  further  definite  bor¬ 
rowings  of  definite  penalties.  The  presence  of  slightly 
modified  borrowings  from  the  penitentials  of  Vinnian, 
Gildas,  and  the  British  synods,  as  noted  above,  would  also 
seem  to  indicate  that  they  may  have  been  included  in  the 
'  hbellus  ”,  if  not  used  separately. 

When  one  adds  the  borrowings  of  the  Penitential  of 
Theodore  from  the  “ Canones  Hibernenses  ”  2  and  from  the 
Penitential  of  Vinnian,3  the  total  minimum  of  borrowings 
from  Irish  sources  is  eight  decisions  or  “  judicia  ”  dealing 
with  such  capital  subjects  as  commutations,  homicide,  theft, 
adultery,  fornication  with  a  nun,  virgin,  or  slave.4  While 


111  Aliquando  inibi  fortius  firmavit  de  pessimis  ”,  “  aliquando  vero 
lenius  ”,  etc.,  in  loc.  cit. 

*  For  materials  borrowed  from  them,  supra. 

3  Cf.  on  borrowings  from  P.  Vinn.,  supra ,  and  the  excellent  articles  by 
Fourner,  cited  supra,  chap.  i. 

4  Vide  supra,  notes  for  references ;  one  might  also  add  legitimately 
-he  Irish  portions  on  slaves  as  commutation,  as  they  appear  separately 
from  the  “  tridnana  ”  in  Irish  sources. 


ENGLISH  PENITENTIAL  DISCIPLINE 


114 


[472 


the  borrowings  from  Welsh  sources,  according  to  Was- 
serschleben,  total  at  most  seven  or  eight,  but  deal  with  less 
grievous  offences  and  matters  of  limited  import,  such  as 
sodomy,  masturbation,  neglect  of  ecclesiastical  service,  the 
“  unclean,”  1  with,  however,  one  very  important  borrowing 
on  fratricide  from  the  Welsh  synod  of  Liicus  Victoria^.2 

The  well-known,  prominent  and  influential  position  of 
Theodore  and  his  successful  efforts  in  further  organising 
the  English  Church  seem  to  indicate  that  the  Penitential 
under  his  name  exercised  considerable  direct  influence. 
Coming  at  the  time  of  more  thorough  extension  of  Roman  3 
authority  over  the  English  Church,  the  provisions  of  this 
Penitential  for  the  suppression  of  the  Celtic4  heresy  were 

lVide  supra,  notes  on  Wasserschleben  penitentials  and  P.  Th.,  also 
cf.  Wasserschleben  edition  of  P.  Th.  for  Gildas.  The  exception  noted 
from  Syn.  Viet.,  supra,  Wasserschleben  104,  cf.  188. 

2  For  the  foregoing  comparison  and  the  following  passage  upon  the 
textul  influence  of  Theodore’s  penitential,  free  use  has  been  made  of 
the  excellent  references  of  Wasserschleben  and  of  Haddan  and  Stubbs, 
locc.  citt.  After  quoting  “  Ista  testimonia  ....  Scottorum,”  from) 
Theodore,  Wasserschleben  remarks  merely,  (pp.  27-28):  “Jener  libellus 
war  wahrscheinlich  eine  Sammlung  irischer  oder  schottischer  Kanonen, 
welche  Theodor  in  einem  Weisthum  ergiinzt  und  modrifizirt  hat.  Weiter 
unten  wird  von  einer  aus  irischen  Quellen  entnommen  Bestimmung 
Theodors  ausfiihrlicher  die  Rede  sein.”  Cf.  Wasserschleben  188. 

For  independent  matter  in  this  penitential,  vide  Schmitz  I,  189  et  seqq., 
436  and  522.  On  the  possible  influence  of  secular  compositions,  infra, 
chap.  vi.  For  additional  citations  by  Theodore  of  Justinian’s  Novellae, 
see  the  Wasserschleben  edition,  passim.  For  critical  remarks  on  Was- 
serschleben’s  methods,  vide  Hormann,  in  Fitting’s  Melanges  II,  passim. 

sCf.  Bright,  op.  cit.,  chap,  vi  and  passim. 

iCf.  Wasserschleben  13.  P.  Th.,  can.  v,  “  Concerning  Those  That  are 
Deceived  by  Heresy,”  would  most  naturally  refer  to  the  Celtic  heresy 
which  was  still  being  suppressed  in  Theodore’s  time;  cf.  Bright,  loc. 
cit.  and  passim.  Severe  penalties  are  provided  by  Theodore  for  thosd 
who  have  been  ordained  by  heretics;  abjurors;  celebrating  Easter  on 
the  wrong  date;  praying  with  a  heretic;  encouraging  heretics;  being 
baptised  by  a  heretic;  receiving  communion  from  a  heretic  or  giving 


THE  LITERARY  HISTORY 


473] 


115 


probably  of  great  use  in  extirpating  insubordination  by 
neans  of  severe  penances.  In  this  connection,  however,  it 
s  to  be  noted  that  the  parts  of  the  Penitential  from  the  Celtic 
‘  libellus  Scottorum  ”  were  probably  intended  to  placate 
Celtic  opinion  and  thus  aid  in  the  acceptance  of  the  Peni- 
:ential  and  in  increasing  its  use. 

Against  the  arguments  that  this  penitential  directly  en¬ 
joyed  a  lasting  use  in  the  English  Church  are  several  facts 
noted  before,  and  summarized  well  by  Haddan  and  StubbsA 
The  silence  of  Bede  and  of  other  later  historians  is  not  con- 
dusive  as  to  its  disuse  or  non-existence,2  when  taken  alone ; 
is  has  been  shown.3 

But 4  the  appearance  and  apparently  extensive  use  of  later 
penitentials — such  as  those  of  the  Theodore-cycle,  and  those 
of  Bede,  Egbert,  and  the  Egbert-cycle — ‘naturally  both  in¬ 
dicate  a  probable  decline  of  the  direct  use  of  the  Penitential 
of  Theodore  and  a  narrowing  of  its  field  by  competition. 
Though  the  paucity  of  early  sources  on  the  Penitentials 

« 

it  to  one;  allowing  a  heretic  to  celebrate  mass  in  a  Catholic  church; 
persuading  others  to  heresy;  holding  mass  for  a  heretic,  etc.  See  the 
text  in  the  standard  editions. 

Speaking  of  the  unorganised  condition  of  the  English  Church  when 
Theodore  took  charge,  Cabrol  considers  that  the  Penitential  of  Theodore 
furnished  elements  that  could  be  used  for  further  organisation;  vide 
Cabrol,  L’angleterre  chretienne  1 37.  On  Theodore’s  general  influence, 
the  same  author  says :  “  Sur  la  theologie  et  sur  la  discipline,  il  a 
exerce  la  plus  grande  influence  par  les  regies  qu’ils  a  etablies'  ”  vidd 
ibid.  26. 

1Vide  supra,  on  authorship  of  P.  Th. 

1  Op.  cit.  iii,  173  et  seq.,  but  minimizing  too  much  the  direct  influence. 

3  See  the  arguments  locc.  citt.,  and  especially  that  the  historians  after 
the  12th.  century  lived  in  a  time  when  the  penitentials,  strictly  speaking, 
had  been  superseded  by  the  summae. 

AVide  supra,  especially  H.  and  S.;  cf.,  also,  Watkins,  op.  cit.,  644, 
656-659,  for  the  belief  that  it  was  the  chief  factor  in  spreading  private 
penance  on  the  Continent. 


n6  ENGLISH  PENITENTIAL  DISCIPLINE  [474 

naturally  precludes  too  positive  conclusions,  it  is  probable 
that  the  greatest  influence  of  the  Penitential  of  Theodore 
was  indirect,  through  borrowings  from  it  by  later  English 
penitentials  and  by  others  of  Continental  origin.  As  will 
be  shown  more  fully  below,  it  is  somewhat  remarkable  that 
a  very  large  number  of  penitentials  used  in  England  and 
borrowing  from  that  of  Theodore  were  of  Frankish  origin.1 
Hence,  it  seems  that  much  of  the  influence  of  Theodorian 
decisions  in  England  during  the  tenth  and  eleventh  cen¬ 
turies  2  was  through  Frankish  compilations  which,  in  some 
cases,3  had  themselves  borrowed  from  Theodore’s  peni¬ 
tential. 

Detailed  investigation  of  the  complicated  textual  relations 
of  individual  penitentials  to  each  other  is  an  especially  im¬ 
portant  task,  worthy  of  more  intensive  investigation  along 
the  lines  laid  down  recently  by  Hormann,  Fournier  and 
others.4  As  shown  bv  the  numerous  citations  in  the  edi¬ 
tion  of  Wasserschleben,5  the  textual  influence  of  the  Peni¬ 
tential  of  Theodore,  both  direct  and  indirect,  was  very  ex¬ 
tensive.  Other  penitentials  which  borrowed  most  fre¬ 
quently  from  it  included  those  of  Bede  and  of  Egbert ;  and 

1  E.  g.  pseudo-Egbert,  some  of  the  versions  of  pseudo-Bede,  the  Con¬ 
fessional  of  pseudo-Egbert,  the  members  of  the  Theodore-cycle,  the 
pseudonymous  Canons  of  Edgar  and  others  enumerated  infra. 

‘See  dates  of  those  penitentials  infra. 

3  E.  g.  the  Capitula  Theodori  of  Petit,  largely  from  the  Pseudo-Theo¬ 
dore;  cf.  supra,  chap.  i.  Caution  on  this  subject  would  seem  super¬ 
fluous  if  various  authors  had  not  often  mistaken  an  indirect  for  a 
direct  influence  in  this  field;  cf.  Lea,  Auricular  Confession  II,  106  and: 
Lepicier,  Hist,  of  Indulgences,  passim,  for  examples.  Cf.,  also,  the 
generally  rejected  theory  of  their  Roman  derivation  by  Hildenbrar.d 
in  Krit.  Jahrbiicher  d.  deutsche  Rechtswissenschaft,  Bd.  17,  S.  514  et  seq ■ 

4  /  ide  supra,  chap,  i,  for  summary  of  critical  writings. 

‘See  comments  supra,  chap.  i. 


THE  LITERARY  HISTORY 


117 


475] 

the  later,  spurious  Excarpsus  CummeaniP  Less  strongly 
influenced  were  the  Poenitentiale  XXXV  Capitulorum,  the 
Penitential  of  Merseburg  and  others.2  It  is  somewhat  re¬ 
markable  that  the  English  penitential®  of  Bede  and  of  Egbert 
apparently  borrow  less  decision®  from  that  of  Theodore 
than  does  the  spurious  Continental  Excarpsus  Cummeani.3 

SECT.  2.  THE  PENITENTIAL  OF  BEDE - EXCARPSUM  .  .  .  . 

BEDANI  OR  POENITENTIALE  BAEDAE 

This  penitential  is  to  be  carefully  distinguished  from 
another  work  called  Liber  de  Remediis  Peccatormnp  f  orm¬ 
erly  regarded  as  the  work  of  Bede  but  now  known  to  be  of 
different  origin.  The  Excarpsum  Domini  Bedani  5  or  Poeni¬ 
tentiale  Baedae  has  been  printed  in  part  by  Martene  and 
Durand.6  The  whole  of  this  penitential  has  been  edited 

1  Not  the  earlier  genuine  Penitential  of  Cummean ;  vide  supra,  chap.  i. 

3  See  the  Wasserschleben  edition  and  the  critical  works  cited  supra, 
chap.  i. 

3  Supra.  For  the  influence  of  Theodore  on  the  Hibernensis,  vide  Bury, 
J.  B.  Life  of  St.  Patrick  (London,  etc.  1905),  235  and  his  references; 
but  particularly  Wasserschleben,  Irische  Kanonensammlung,  (Giessen, 
1874;  2d.  ed.,  Leipzig,  1885),  247-248.  On  various  points  of  connec¬ 
tion  between  the  Penitential  of  Theodore  and  the  ritual  of  the  Celtic 
■Church,  vide  Bridgett,  Hist,  of  the  Holy  Eucharist,  (2  vols.  London, 
1881  and  in  1  vol.  1908),  passim;  also,  Warren,  F.  E.,  Liturgy -and 
Ritual  of  the  Celtic  Church,  p.  42,  (Oxford,  1881).  For  the  influence  of 
the  Penitential  of  Theodore  on  various  Frankish  collections  of  canon 
law,  see  the  remarks  on  the  MSS.  and  on  the  critical  works  supra,  chap, 
i.  For  the  influence  of  Theodore  on  the  Corpus  Juris  Canonici,  see 
especially  the  standard  edition  by  Emil  Friedberg,  (2  vols.,  Leipzig, 
1879-1881). 

4 Called  by  Wasserschleben  “pseudo-Bede,”  by  us  “pseudo-Bede  II” 
and  by  Schmitz  the  “Double  Penitential  Bede-Egbert.”  Vide  infra. 

5  In  some  MSS.  misspelled  “  Ex  crap  sum.” 

6  Martne  and  Durand,  Ampl.  Coll.  VII,  col.  37,  omitting  the  latter 
half  of  the  work  and  containing  a  few  unimportant  additions  from 
P.  Th.  or  from  common-  sources.  Cf.  ,H.  and  S.  Ill,  326;  Wasserschle¬ 
ben  220  and  note  1 ;  and  Schmitz,  infra. 


ng  ENGLISH  PENITENTIAL  DISCIPLINE  [476 

by  Wasserschleben  1  from  another  manuscript,  also  followed 
by  Haddan  and  Stubbs ;  and,  from  still  another  manuscript, 
in  both  volumes  of  Schmitz’ 2  edition.  It  is  agreed  by 
Was-serschleben,  Haddan  and  Stubbs,  and  Schmitz  3  that 
the  original  work  ends  with  canon  vii  or,  possibly,  with 
canon  v;  and,  hence,  that  the  following  canons  and  sections 
on  the  important  subject  of  commutations  are  later  addi¬ 
tions.  As  we  have  seen,4  this  vitally  affects  the  practice  of 
commutations,  especially  as  these  later  sections  are  evidently 
of  Frankish  origin. 

If  written  by  the  Venerable  Bede  5  (d.  735),  the  treatise 
must  have  been  composed  in  the  early  part  of  the  eighth 
century.  In  the  early  manuscripts,  noted  above,  the  eighth 
century  seems  to  the  date  of  composition.  There  are  re¬ 
ferences  to  a  penitential  of  Bede  6  in  the  works  of  Regino 

1  Wasserschleben  220-230;  H.  and  S.  Ill,  3126-334.  Wasserschleben 
uses  Cod.  V indob.,  no.  116,  8to.  saec.  VIII,  IX,  fol.  17-22,  followed 
by  Haddan  and  Stubbs,  with  variants  from  the  Andain  MSS.  For  other 
MSS.,  Wasserschleben,  Joe.  cit.  and  H.  and  S.,  Joe.  cit.,  both  omitting 
those  followed  by  iSchmitz.  Cf.,  also,  Hildenbrand,  in  Krit.  Jahrbb. 
f.  dcutsche  Rechtswissenschaft,  B.  17,  S'.  521;  Hanel,  Catal.,  850; 
Wasserschleben  37  et  seqq. 

2  Schmitz  I,  556  et  seqq.,  after  Cod.  Monac.  12673,  fol.  2,  with  variants 
from  Cod.  Palat.  (Vatican)  294,  fol.  87,  which  last  forms  the  basis 
for  Schmitz  II,  654  ct  seqq.  Schmitz  here,  as  elsewhere,  pays  no  atten¬ 
tion  to  the  work  of  Haddan  and  Stubbs. 

8  Wasserschleben  227,  note  1,  followed  by  H.  and  S.  Ill,  333,  note  45; 
cf.  Schmitz  I,  loc.  cit.,  ending  with  canon  vi,  while  that  in  Schmitz  II, 
loc.  cit.,  ends  with  canon  v. 

*  Vide  supra,  chap,  iii,  under  commutations. 

5  The  pre-eminence  of  Bede  is  too  well-known  to  require  further  at¬ 
tention  here.  In  passing,  the  writer  would  caution  readers  against  too 
great  dependence  upon  the  bibliography  in  Chevalier’s  guide,  which 
contains  also,  as  genuine,  references  to  much  spurious  matter  connected 
with  the  Pseudo-Bedes. 

G  Regino,  De  synodalibus  causis  et  discipl.  cedes.,  lib.',  in  p.  1,  c.  96. 
cited  by  Schmitz  I,  550,  cf.  II,  647,  193;  Wasserschleben  37  et  seqq-' 
“  Si  habeat  poenitentiale  Romanum  vel  a  Theodore  episcopo  aut  a 


THE  LITERARY  HISTORY 


477] 


119 


of  Priim  and  in  other  compilations,  from  the  ninth  century- 
down.  Moreover,  Wasserschleben,  after  Jacobson,  Kun-st- 
mann,  and  Knust,1  adduces  as  evidence  for  the  authenticity 
of  the  Penitential  of  Bede  the  facts  that  one  early  manu¬ 
script  of  lit  expressed  the  name  Bede  as  the  author,  while 
others  frequently  bear  his  name  in  the  title.  These  reasons 
have  led  Wasserschleben,  Jacobson,  Haddan  and  Stubbs, 
Werner  and  various  writers  in  the  religious  encyclopedias  21 
to  favor  a  probability  that  Bede  may  have  been  the  author 
of  this  Penitential. 

Against  these  arguments,  Schmitz  3  urges  that,  in  that 
time  of  great  ignorance,  the  ascription  of  authorship  merely 
in  a  title  is  poor  evidence,  in  view  of  the  various  penitential 
works  thus  wrongly  ascribed  in  that  time  to  Bede,  Theodore, 
Cummean,  and  the  -like.4  Furthermore,  Bede  nowhere  men¬ 
tions  it  himself  and,  in  particular,  it  is  missing  in  the  early 
list 5  of  his  writings.  Also  there  is  no  mention  of  Bede’s 


venerabile  Bede  editum ;  ”  cf.  references  in  Regino,  Penitential,  “  ex- 
poenitentiale  Romano  Theodori  episcopi  et  Bedae  Presbyteri  ”  and  “  ex 
Theodori  episcopi  vel  Badae  presbyteri  Poenite-ntiale.”  Reg.  I,  297, 
II,  246,  cited  by  Schmitz  I,  550  et  seq.,  II,  647;  Wasserschleben  37-38. 
For  citations  in  the  later  Burchard,  -Schmitz  locc.  citt. 

1  Wasserschleben  38,  citing  Jacobson,  in  Allg.  Lit.  Z.,  (1839),  nr.  214 
et  seq.  Cf.  Kunstmann  32,  41 ;  and  contra,  Schmitz,  infra. 

*In  general:  DCA.,  Wace  and  Piercey,  DCB.,  DNB.,  Herzog-Hauck; 
and  cf.  Ency.  Brit.  Also,  following  Wasserschleben,  the  biography  of 
Bede  by  K.  Werner,  Bcda  der  Ehrwiirdige  u.  s.  Zeit,  (Vienna,  1875, 
new  ed.,  1881,  valuable),  especially  pp.  93  et  seq.;  also  cf.  Manitius,  op. 
cit.,  passim. 

‘Schmitz  I,  loc.  cit.,  but  especially  II,  646  et  scqq.,  and  excellent  notes. 

4  E.  g.  pseudo-Bede,  Prol.  Ps.-Bcde,  the  various  pseudo-Theodores, 
and  the  late  Exc.  Cumm.,  passim. 

5  Made  by  Bede  three  years  before  his  death;  see  C.  Plummer,  Opera 
of  Bede,  t.  i.  Appendix,  Introd.  Pt.  1:  “On  the  Chronology  of  Bede’s 
Writings”,  especially  pp.  clvi-clviii :  “The  Penitential,”  (Oxf.  1896); 
cf.  ibid.,  pp.  clxiv,  clx,  on  the  irregular  form  of  the  Latin  genitive 
“Bedani”,  as  influenced  by  the  weak  A-S.  genitive  “  Bedan  ”.  Also, 
for  minimising  of  this  argument :  Albers,  in  AKKR.,  LXXXI,  N.  F. 
(1901),  393  et  seq.  and  infra ,  on  Ps.-Bede. 


120 


ENGLISH  PENITENTIAL  DISCIPLINE 


[478 

penitential  in  that  of  Egbert,  his  pupil.1  Finally,  the 
meagre,  sketchy  nature  of  the  compilation  is  unworthy  of 
the  scholarship  of  the  great  Bede.  But,  though  denying  the 
direct  authorship  of  Bede,  Schmiitz  early  admitted  that  it 
might  have  been  founded  substantially  upon  decisions  by 
Bede.  Hence,  as  with  many  another  influential  penitential, 
some  doubt  remains  as  to  its  authorship.2 

The  sources  for  the  Penitential  of  Bede  consist  of  ex¬ 
cerpts  from  the  penitential's  of  Theodore,8  Vinmian,4  the 
Synod  of  Lucus  Victoriae,5  the  Ordo  Romanus ,6  the  Peni¬ 
tential  of  Gildas,7  the  Synod  of  Brevi,8  and  the  Penitential 
of  Columban,9  in  order  of  frequency.  The  style  of  the  Peni¬ 
tential  of  Bede  is,  at  times,  very  confused  and  planless.10 

As  regards  the  influence  of  the  Penitential  of  Bede,  if  we 
accept  the  generally  assumed  chronology  of  the  above  peni- 
tentials  and  of  those  about  to  be  mentioned,  it  would  seem 
that  this  penitential  was  relatively  restricted  in  direct,  tex¬ 
tual  influence. 

In  view  of  the  resemblance  in  name,  and  since  it  was  for¬ 
merly  considered  a  work  of  Bede  and  shows  the  possible 
influence  of  the  Penitential  of  Bede,  the  next  logical  topic 

*H.  and  S.  Ill,  418,  and!  Schmitz  II,  647  and  n.  4. 

2  See  discussion  of  sources,  infra ;  cf.  Schmitz,  loc.  cit.  (Schmitz  I, 
572  earlier  admits  the  substantial  origin  from  Bede. 

*  See  the  editions  of  P.  Th.  and  of  P.  Bede  in  Wasserschleben. 

4  Supra;  cf.  chap.  i. 

5  Supra. 

6 Supra,  but  especially  in  Wasserschleben  220,  229. 

7  See  the  editions  of  Wasserschleben. 

8  Supra. 

*Vide  Wasserschleben,  passim,  and  Seebass,  locc.  citt.,  supra,  chap.  i. 

10  For  a  view  that  P.  Bede  and  Ps.  Bede  had  great  significance  for 
Continental  penance,  vide  Watkins,  op.  cit.,  passim.  On  the  style  of 
Ps.  Bede,  cf.  Wasserschleben  39. 


THE  LITERARY  HISTORY 


121 


479] 

would  seem  to  'be  the  Penitential  of  pseudo-Bede.  But,  in 
two  of  the  alleged  versions  of  the  latter,  the  strong  influence 
of  Egbert  has  been  recognised  by  several  writers.1 2 *  Hence, 
the  present  writer  will  first  discuss  the  Penitential  of  Egbert, 
following  that  with  discussion  of  the  so-called  pseudo-Bedes 
and  other  penitentials  that  probably  were  current  in  England 
late  in  the  period  in  question. 

SECT.  3.  THE  PENITENTIAL  OF  EGBERT - EXCARPSUM  .... 

VEL  POENITENTIALE  ....  EGBERTI  (EAMBERCTHI, 

variant),  archiepiscopi  eburaci  civitatis 

Among  several  works*  dealing  with  penance  that  were 
formerly  ascribed  to  Archbishop  Egbert  of  York,  the  above 
penitential  is  now  generally  regarded  as  the  only  one  which 
may  be  ascribed  to  him  with  any  great  degree  of  probability. 
This  was  first  established  by  the  Baller.ini  ;J  but  afterwards 
obscured  by  the  careless  acceptance  of  other  works  by 
Thorpe  and  others,  until  the  latter  were  demonstrated  to 
be  spurious  by  Hildenbrand,  Mone,  Wasserschleben,  and 
Haddan  and  -Stubbs.4  The  original  penitential,  under  the 
general  title  given  or  similar  titles,5 6 * 8  has  been  edited  by  Was¬ 
serschleben  from  a  Vienna  manuscript,'  with  variants  from 
other  Continental  manuscripts,  an  edition  followed  by 

lVide  infra,  for  references  on  Egbert,  etc. 

2  For  the  pseudonymous  Penitential  of  Egbert  and  Confessional  of 

Egbert,  infra,  this  chapter.  For  an  excellent  list  of  works  ascribed  to 
Egbert:  H.  and  S.  Ill,  413  et  seqq.,  largely  following  Wasserschleben. 

*  Vide  Wasserschleben  iv,  note  2  and  41-42;  Mansi,  op.  cit.  XII,  41 1. 

iVide  Wasserschleben  41  et  seqq.)  H.  and  S.  Ill,  414-415. 

6  On  the  title,  cf.  Wasserschleben  231,  note  1;  H.  and  S.  Ill,  415-416; 

Schmitz  I,  573  and’  II,  549,  661. 

8  Cod.  Vindob,  jur.  can.  no.  116,  fol.  77-87,  with  variants  from  an 
Andain  MSS.  published  incompletely  by  Martene  and  Durand,  Ainpl. 
Coll.,  as  anonymous,  vol.  vii,  coll.  40-48.  Cf.,  also,  Wasserschleben, 
231,  note  1,  for  others,  and  Wasserschleben  40-41,  H.  and  S.,  locc.  citt. 


122 


ENGLISH  PENITENTIAL  DISCIPLINE 


[480 

Haddan  and  Stubbs  1  with  variants  from  an  English  manu¬ 
script.  Schmitz 2  also  has  published  the  penitential  from 
two  variant  manuscripts  at  Rome  and  elsewhere  on  the 
Continent,  without  sufficient  attention  to  some  earlier  manu¬ 
scripts  printed  by  Martene  and  Durand,  Wasserschleben 
and  Haddan  and  Stubbs.  It  will  thus  be  seen  that,  for  the 
text  of  this  penitential,  the  purest  version,  with  the  best 
variants,  is  that  of  Haddan  and  Stubbs;  but  the  critical 
material  of  their  edition  needs  to  be  amplified  from  those 
of  Wasserschleben,  and  of  Schmitz,  and  by  the  critical  re¬ 
marks  in  the  article  by  Albers. 

There  is  strong  probability  that  the  penitential  described 
above  was  composed  by  Archbishop  Egbert  of  York,  who 
was  consecrated  in  A.D.  732  and  died  about  A.  D.  766,  a 
prelate  who  was  the  pupil  of  the  Venerable  Bede  and  noted 
for  his  learning  and  piety.3  Reasons  for  ascribing  this  peni¬ 
tential  to  Egbert  are  the  following :  There  is  no  reference  to 
anything  of  later  date;  it  is  cited  as  Egbert’s  by  Rhabanus1 
Maurus,4  a  pupil  of  Alcuin;  and  is  described  as  Egbert’s  by 
the  tenth-century  compiler  of  the  Bodleian  manuscript.5 

JH.  and  S.  Ill,  416-4311  has  variants  from  those  of  Wasserschleben 
and  from  Bodl.,  718,  where  it  forms  part  of  Book  I  but  is  described 
as  Egbert’s  by  the  compiler;  vide  H.  and  S.  Ill,  415.  They  include 
also  variants  from  fragments  of  the  penitential  found  with  Egbert’s 
Pontifical. 

2  Schmitz  I,  573-587,  from  Cod.  Monac,  12,  6/8,  fol.  6  and  Cod.  Palat., 
554 .  fol.  5;  Schmitz,  vol.  ii,  99,  661-74,  Cod.  Palat.  (Vatican)  485,  fol. 
73,  with  variants  from  Cod.  Palat.,  554,  Cod.  Andag.  of  Martene,  Cod. 
Vindob.  22-23,  and  Cod.  Monac.,  13,  673.  The  principal  MS.  followed, 
Cod.  Palat.,  485,  is  late,  of  the  nth  century,  while  Cod.  Monac.,  13, 
673  is  of  the  10th  century. 

•On  the  life  of  Egbert  of  York  see,  particularly,  Cabrol  et  Leclercq, 
Dictionnairc,  etc.,  under  “Egbert,”  (1921),  which  contains  a  better 
brief  biography  than  is  found  elsewhere. 

*Vide  Wasserschleben  14  ct  seqq . ;  H.  and  S.  Ill,  414. 

bVide  H.  and  S.  Ill,  415,  1,  for  description;  also  414,  iii. 


THE  LITERARY  HISTORY 


123 


481] 

Against  these  arguments  and  in  denial  of  Egbert’s  author¬ 
ship,  Schmitz  1  urges  that  one  of  the  manuscripts  2  is  anony¬ 
mous  ;  that  many  works  were  wrongly  ascribed  to  Egbert  of 
York;  that  the  somewhat  planless,  poor  compilation  is  un¬ 
worthy  of  Egbert;  and  that  his  penitential  is  not  cited  by 
name  in  later  collections.  These  arguments  are  very  weak 
in  view  of  the  reference  by  Rhabanus  Maurus,  cited  above; 
the  repeated  appearance  of  sections  of  this  penitential  as 
parts  of  later  penitentials  ascribed,  even  if  wrongly,  to 
Egbert;  the  appearance  of  fragments  from  it  in  the  authentic 
Pontifical 3  of  Egbert ;  and  the  fact  that  the  criterion  of 
contents  is  purely  arbitrary.  In  his  first  volume,  Schmitz  * 
admits  that  Egbert  of  York  may  have  uttered  determina¬ 
tions  or  “  Weistiimer,”  which  were  afterwards  edited  in 
much  the  same  manner  as  those  of  Theodore  and  of  Bede. 
It  seems,  therefore,  that  the  present  weight  of  probability 
favors  the  authenticity  of  the  Penitential  of  Egbert. 

As  regards  the  contents  of  the  Penitential  of  Egbert,  its 
author  seems  to  have  worked  much  more  independently 
than  the  compiler  of  the  Penitential  of  Bede;  but  the  com¬ 
pilation  of  material  in  that  of  Egbert  is  also  somewhat  crude 
and  confused.5  According  to  Wasserschleben  and  Haddan 
and  Stubbs,6  the  original  penitential  seems  to  end  with  the 
fourteenth  chapter ;  and  the  important  chapter  fifteen  and 
following,  on  commutation,  is  a  later  addition  from  Irish 

Schmitz  I,  565  et  seqq . ;  II,  648  and  passim;  and  I,  109  ct  seqq.,  119, 
192,  5 72. 

2  Vis.  that  of  the  monastery  of  iS.  Hubert  at  Andain,  cited  supra;  cf. 
H.  and  S.  Ill,  414. 

s  Ibid.  416,  marked  S'.  in  that  ed.,  after  Surtees  ed. 

*  Schmitz  I,  572. 

5  See  the  characterisation  in  Wasserschleben  41. 

6 Wasserschleben  41,  246  and  n.  1,  cf.  n.  2;  ,H.  and'  S.  Ill,  passim ; 
and  infra. 


124 


ENGLISH  PENITENTIAL  DISCIPLINE 


[482 

and  Frankish  sources.1  As  we  have  seen,  the  foreign  nature 
of  these  sections  on  commutations  has  an  important  bear¬ 
ing  upon  the  question  of  the  practice  of  these  mitigations 
in  pre-Norman  England.  Outside  of  the  Prologue,2  the 
greatest  number  of  borrowings  by  the  Penitential  of  Egbert 
are  from  that  of  Theodore,  with  others  from  that  of  Bede,3 
the  Irish  and  early  British  penitentials,4  the  Apostolic 
Canons,5  and,  possibly,  the  early,  genuine  Penitential  of 
Cummean.6 

The  direct  influence  of  the  Penitential  of  Egbert  on  the 
English  Church  was  probably  very  powerful.  The  posi¬ 
tion,  learning,  piety,  and  personal  influence  of  Egbert  must 
have  been  especially  influential  in  northern  England;  and 
the  frequent  use  of  his  name  affixed,  wrongly  or  otherwise, 
to  several  other  7  influential  works  on  canon  law  used,  in 
pre- Norman  England  sufficiently  attests  the  considerable  ex¬ 
tent  of  his  repute  in  matters  concerned  with  penance.  The 
textual  dependence  of  other  English  penitentials  upon  that 
of  Egbert  was  second,  perhaps,  only  to  that  on  Theodore’s 

1  From  the  early  Irish  De  Arreis  and  the  Frankish  so-called  Statuta 
S.  Bonifacii;  vide  Wasserschleben,  locc.  citt.,  and,  on  the  second, 
Hormann,  in  Fitting,  Melanges,  loc.  cit. 

*The  “Prologue”  cites  Jerome,  Augustine,  Gregory  the  Great, 
Theodore  and  Punifius  or  Pinuphius;  also  Gregory  of  Nazianzen. 
Vide  Wasserschleben,  locc.  citt.  It  also  has  references  to  the  Bible. 

‘See  the  parallels  mentioned  in  Wasserschleben,  passim. 

4  Particularly  P.  Vinn.,  Syn.  Viet.,  P.  Gild ;  vide  Wasserschleben, 
locc.  citt.  and  under  these  penitentials. 

5  Vide  Wasserschleben  236,  for  parallels. 

‘There  are  references  to  P.  Cumm.  and  to  an  Ordo  Cumm.  Some 
of  these  are  to  the  later  Ps.  Cumm.,  showing  Egbertian  influence.  But, 
since  the  discovery  by  Zettinger  of  an  early,  seventh  century  Cummean, 
that  work  may  have  influenced  Egbert,  rather  than  the  reverse.  Vide 
Wasserschleben  4  and  the  article  by  Zettinger,  in  AKKR.,  cited  supra , 
chap.  i. 

T  Vide  supra,  also  infra  on  Conf.  Ps.  Egb.,  P.  Ps.  Egb.,  etc. 


THE  LITERARY  HISTORY 


125 


483] 

penitential.  The  most  intensive  borrowing  from  the  peni- 
tenitials  of  Bede  and  of  Egbert  is  shown  in  the  versions  or 
separate  penitentials  1  that  are  now  known  as  pseudo-Bedes. 

SECT.  4.  THE  ALBERS  VERSION  OF  THE  PSEUDO-BEDE - LIBER 

DE  REMEDIIS  PECCATORUM  2 - OR  PSEUDO-BEDE  I 

Since  the  times  of  Speiman  and  of  Wilkins,3  a  certain 
penitential  has  been  known  and  published  at  first  as  that  of 
Bede;'4  though  it  was  sometimes  considered  as  being  by 
Egbert,  or  the  later  compilation  of  a  Frankish  writer.5  The 
editions  published  by  Speiman  and  by  Wilkins,  in  some 
editions  of  the  collected  works  of  Bede,  and  by  Martene  and 
Durand,  Wasserschleben  and  Schmitz,  are  now  recognized 
as  of  later  Frankish  origin.6  But  another  version  has  been 
discovered  7  by  Albers  which  is  apparently  much  earlier  and 
may  probably  be  of  English  origin.  In  our  opinion  this  is 
an  independent,  different  penitential,  not  another  reading  or 
version  of  the  manuscript  used  by  Kunstmann,  Wasser¬ 
schleben,  and  others;  though  it  is  probable  that  the  peniten¬ 
tial  published  by  Albers  formed  the  model  for  the  later 
Frankish  compilation.  For  convenience,  we  shall  call  the 

lFor  two  distinct  classifications,  infra.  For  the  numerous  parallels, 
vide  Wasserschleben,  especially  under  P.  Egb.,  Ps.  Th.,  P.  Paris,  P. 
Floriacens.,  P.  Mart.,  P.  Vindob.,  P.  Bigot.,  Ps.  Cumin,  or  Exc.  Cumin. 
and  its  “  Ordo.” 

2  In  Albers’  version  or  penitential  prefaced  by  “Venerabilis  Bedae 
presbiteri,”  in  AKKR,  vol.  81,  p.  399- 

JA.  D.  1639  and  1737. 

iVide  infra,  sect.  5.  For  a  summary  of  editions,  vide  H.  and  S.  Ill, 

326. 

iVide  infra,  sect.  5. 

*Infra,  sect.  5. 

7  Albers,  B.,  in  AKKR.  vol.  81,  $te.  Folge,  (1901),  pp.  393“420,  with 
excellent  critical  introduction  and  variants ;  though  he  omits  comparison 
with  editions  earlier  than  that  of  Schmitz,  vol.  ii. 


126 


ENGLISH  PENITENTIAL  DISCIPLINE 


[484 


Albers  version,  I,  and  the  other,  II.  We  'shall  now  examine 
the  evidence  relating  to  the  Albers  version,  and  discuss 
later  that  of  II. 

The  text  edited  by  Albers  is  taken  from  a  manuscript 
compilation  in  the  Barberini  Library  1  at  Rome,  partly  be¬ 
longing  to  the  ninth  and  partly  to  the  tenth  and  eleventh 
centuries,  and  found  with  fragments  of  the  works  of  Isidore 
of  Seville,  S.  Jerome,  and  works  of  Bede,  an  anonymous 
work  on  monastic  customs,  letters  of  Pope  Gregory  I,  and 
the  fragment  of  a  psalter.2  The  title  is  much  shorter  and 
different  from  that  of  the  work  published  by  Wasserschle- 
ben  3  and  others.'4 

Albers  5  adduces  excellent  reasons  for  considering  that 
this  penitential — De  Remediis  peccatorum  paucississima — 
was  composed  in  the  early  part  of  the  eighth  century.6  It 
may  be  objected  that  the  portions  7  which  Albers  uses  as 
evidence  for  this  conclusion  may  not  be  connected  with  the 

1 Cod .  Barberin.  XI,  no.  120,  fol.  60  r. ;  cf.  Albers,  loc.  cit.,  394  et 

scqq..  and  399  and  note  1. 

3 Ibid.  395. 

3  Albers  version  has:  “  Venerabilis  Bedae  presbiteri.”  This  is  very- 
different  from,  the  Wasserschleben-Schmitz-Spelman-Kunstmann  ver¬ 
sion:  “  Incipit  Prologus  Bedae  Presbyteri  De  Remediis  Peccatorum." 
Vide  Wasserschleben  248;  Schmitz  II,  679-680.  Wasserschleben  and 
Schmitz,  locc.  citt.,  also  have  a  rubric  or  title  above  the  “  Ilia  sancta 
institutio,”  etc.,  as  “  Excerptum  De  Canone  Catholicorum  Patrum  Vel 
Poenitentiae  Remedium  Animarum,”  which  is  missing  in  Albers’  version. 

iVide  infra,  sect.  5. 

&Vide  Albers,  loc.  cit.  and  infra,  especially  Albers,  396,  417.  It  is  in 
two  parts  but  Albers  considers  that  they  had  the  same  compiler. 

6  The  author  of  the  penitential  cites  canons  of  the  Lateran  Synod, 
held  under  Gregory  II  in  A.  D.  721,  as  if  he  were  a  contemporary. 
Hence  Albers,  loc.  cit.,  396,  417,  considers  that  the  date  of  composi¬ 
tion  must  lie  between  that  date  and  the  end  of  the  reign  of  Gregory 
IT,  i.  e.  from  A.  D.  721  to  A.  D.  731. 

7  “  Dicta  isidori  ”  and  canons  of  Gregory ;  Albers,  loc.  cit. 


THE  LITERARY  HISTORY 


485] 


I27i 


whole  penitential.  To  this  Albers  cogently  replies  that  it  is  in¬ 
credible  that  a  writer  later  than  the  time  of  Gregory  II  would 
add  some  of  the  canons  of  one  of  his  synods  with  the 
words :  “  he  who  now  reigns,”  1  in  remarking  the  milder  21 
practice  of  the  Church  then;  and  that  the  canons  and  the 
accompanying  “  sayings  of  Isidore  ”  were  called  forth  by 
a  question  3  at  that  time  for  which  they  served  as  answer. 

As  regards  the  authorship  of  this  penitential — Pseudo- 
Bede  I — Albers'4  considers  that  this  question  is  not  yet 
ripe  for  decision.  But  lie  has  made  a  valuable  contribution 
in  bringing  forward  this  manuscript  and  has  given  good 
reasons  for  placing  the  penitential  as  an  English  one  of  the 
eighth  century. 

In  spite  of  Albers’  valuable  contributions  to  the  evidence 
and  information  on  this  penitential,  lie  fails  to  note  suffi¬ 
ciently  that  his  penitential  is  of  absolutely  distinct  author¬ 
ship  from  that  published  by  Schmitz,  Wassersohleben, 
Kunstmann  and  others.  There  are  very  strong  reasons 
for  considering  Penitential  I,  edited  by  Albers,  as  of  dif¬ 
ferent  authorship  from  Penitential  II,  edited  by  Schmitz, 
W a sserschl eben  and  Others;  instead  of  regarding  Peni¬ 
tential  II  as  a  late  copy  of  I,  with  interpolations  and  addi¬ 
tions.  The  conclusion  of  the  present  writer  in  favor  of 
separate  authorship  seems  justified  by  many  striking  dif¬ 
ferences  between  the  two  penitentials  in  general  content  and 
order  5  of  arrangement,  and  by  some  slight  differences  in 
penalties.  There  is  considerable  difference  in  the  title. 


Albers,  loc.  cit.;  cf.  418. 

*Albers,  loc.  cit.,  especially  397,  417  et  scq. 

3  Supra. 

4  Albers,  loc.  cit.,  397,  398,  and  passim.  On  authorship,  vide,  also, 
infra ,  sect.  5. 

5  The  most  important  omissions  by  Penitential  I  are  of  Continental 
matter  found  in  Penitential  II. 


128 


ENGLISH  PENITENTIAL  DISCIPLINE 


[486 

Penitential  I  omits  entirely  several  passages  found  in  Peni¬ 
tential  II.  These  include  the  instructions  to  the  bishop  or 
priest;  the  “  Ordo  ad  dandam  poenitentiam ;”  the  register 
or  index  of  superscriptions;  the  ceremonies  for  reconcilia¬ 
tion;  important  chapters  on  commutations;  and  chapters  in 
the  latter  part  of  Penitential  II  on  perjury  and  “  transgres¬ 
sors  of  the  episcopal  ban,”  the  last  of  Continental  origin. 

These  omissions 1  are  of  marked  consequence  for  the 
operation  of  penance  and  the  question  of  authorship. 
Chapters  of  great  consequence  which  deal  with  commuta¬ 
tions,2  toward  the  end  of  Penitential  II,  are  omitted  by 
Penitential  I.  Several  long  sections  of  chapters  3  in  Peni¬ 
tential  II  are  from  Frankish  synods  of  the  ninth  and  tenth 
centuries  and  are  omitted  by  Penitential  I.  Important  pas¬ 
sages  of  considerable  size  are  found  in  Penitential  1 14  but 
missing  in  Penitential  II :  e.  g.  provisions  against  infanti¬ 
cide;  fornication  of  clerics  and  laymen;  sodomy  and  various 
kinds  of  unnatural  fornication;  and  breaches  of  the  regula¬ 
tions  on  the  “  unclean.”  From  the  resemblance  in  content 51 

lVide  Wasserschleben  250-252,  Albers  op.  cit.  399-491,  and  passim’, 
Wasserschleben  252-256,  'Schmitz  II,  680-683,  for  the  ordo ;  Wasser¬ 
schleben  257-258  and  Schmitz  II,  683-684,  for  the  register. 

*For  the  ceremonies  of  reconciliation  in  Penitential  II:  Wasserschle¬ 
ben  256-257  and  Schmitz  II,  683. 

For  sections  in  Penitential  II  on  perjury,  vide  Wasserschleben  280- 
282  and  Schmitz  II,  700-701,  the  latter  numbering  differently. 

*  Vide  Wasserschleben  280-282,  cans,  xlix,  sect.  2,  xxv,  sects.  3-4  i,  li. 

For  similar  omissions  by  Albers’  penitential  and  very  great  changing 
of  order  of  Wasserschleben’s  cans,  iii-xii,  vide  Albers,  op.  cit.  402-403; 
cf.  ibid.  404,  (9),  omitting  a  whole  section  included  in  Wasserschleben 
265,  can.  xiii,  Schmitz  II,  690. 

iVide  Albers,  op.  cit.  402  and  Wasserschleben  258.  Cf.,  also  the  very 
different  content  of  Albers,  op.  cit.  414,  “  De  diversis  causis,”  as  compared 
with  Wasserschleben  27,  and  Schmitz  II,  690-691. 

iCf.  the  Prologue  in  Albers,  loc.  cit.,  399-401;  Wasserschleben  248- 
250;  Schmitz  II,  679-680,  with  exceptions  noted  supra.  Cf.  Albers, 


THE  LITERARY  HISTORY 


129 


487] 

of  the  two  penitenitials,  with  the  exceptions  noted,  it  seems 
likely  that  Penitential  I  formed  the  model  for  Penitential 
II,  either  directly  or  through  an  intermediary  based  upon  I. 

SECT.  PENITENTIAL  II,  THE  APPARENTLY  LATER  PENI¬ 
TENTIAL  EDITED  BY  WASSERSCHLEBEN  AND  OTHERS 

This  “Liber  de  Remediis  Peccatorum  ”  is  found  in  a  great 
number  of  early  manuscripts.  It  has  been  poorly  edited 
by  Spelman  and  Wilkins ;  in  the  editions  1  of  the  collected 
works  of  Bede; 2  and  by  Morinus.  The  best  editions,  how¬ 
ever,  are  that  of  Kunstmann,3  followed  by  W asserschle- 
ben;'4  and  that  of  Schmitz,5  with  variants  from  manu¬ 
scripts  of  a  late  date  not  used  in  other  editions. 

Several  theories  have  been  propounded  concerning  the 
authorship  of  this  “Pseudo-Bede  II.”  The  belief  that  it 
was  written  by  Bede,  advanced  by  earlier  scholars  like 
Martene  and  Durand  and  by  Morinus  and  in  earlier  edi¬ 
tions  of  the  works  of  Bede,  after  the  superscription  found 

401-402,  sects.  1-6  and  p.  402,  sects.  11-14  and  25,  with  Wasserschleben 
258-259.  Cf.  Wasserschleben  265,  can.  xiii,  1,  with  Albers,  loc.  cit., 
11;  Wasserschleben  267,  can.  xviii,  1,  with  Albers  404-5;  Wasserschle¬ 
ben  270,  can.  xxvi,  with  Albers  405-406;  Wasserschleben  271,  can. 
xxviii,  with  Albers  408.  Wasserschleben’ s  canons  xxi-xxxii,  on  theft, 
xxx,  on  auguries,  xix,  on  drunkenness,  and  xliv-xlv,  on  commutations 
have  many  resemblances  to  passages  in  Albers  410-41 1,  412,  413,  415-416. 
There  are  many  others. 

1  For  citations,  vide  H.  and  S.  Ill,  326. 

!See  the  edition  by  Brewer,  “Appendix,’'  32  ct  seqq . ;  cf.  Wasser¬ 
schleben  38,  248. 

3  Kunstmann,  Lateinischc  Pdnitcntialbucher  der  Angelsachsen  142-175. 

4  Wasserschleben  248-282;  and  his  Bcitr'dge  sur  Geschichte  der  vor- 
grdtianischen  Kirchcnrechtsquellen  16.  It  should  be  noted  that  Spel¬ 
ean  omitted  large  portions  that  had  been  printed  earlier;  cf.  H.  and 
S-,  loc.  cit. 

6  Schmitz  II,  209,  679-701. 


130 


ENGLISH  PENITENTIAL  DISCIPLINE 


[488 

in  some  manuscripts,1  is  now  rejected.2  So,  also,  is  the 
theory  of  the  Bailerini 3  that  it  was  written  by  Egbert  of 
York.  Instead  of  either  of  the  above  ascriptions,  how¬ 
ever,  it  would  now  seem  that  this  penitential  is  a  Frankish  4 
compilation  in  its  entirety.5  lit  was  probably  based  6  upon 
“  Pseudo-Bede  I,”  although  it  possibly  drew,  to  some  ex¬ 
tent,  upon  the  penitentials  of  Bede  and  of  Egbert  directly.7 
For  an  entirely  adequate  solution  of  this  question,  however, 
much  elaborate  and  detailed  collation  of  various  manuscripts 
still  must  be  performed. 

The  sources  for  the  above  penitentials  have  already  been 
indicated.  According  to  Wasserschleben  and  Hildenbrand,8 
the  Pseudo- Bede  of  their  editions  was  a  compound  of  the 
Penitentials  of  Bede  and  of  Egbert.  Hormann  9  gives  good 
reasons  for  concluding  that  the  Pseudo-Bede  did  not  form 
the  model  for  the  Pseudo-Theodore,  but  that  the  passages 
in  the  latter  showing  the  influence  of  the  penitentials  of 

1 Vide  H.  and  S.,  Wasserschleben  and  Schmitz,  locc.  citt. 

3  Because  of  a  reference  in  it  to  Egbert  as  Archbishop,  a  title  that  he 
did  not  assume  until  after  the  death  of  Bede.  Vide  H.  and  S.,  loc. 
cit. ;  Wasserschleben  38  et  seqq. ;  Kunstmann,  loc.  cit.  Cf.  infra,  for 
Frankish  matter  interpolated  in  it. 

*Cited  by  Wasserschleben  37  and  by  H.  and  S.  Ill,  326. 

4 Vide  supra,  chap,  iii,  that  subject. 

4  See  the  editions  cited  supra. 

6  Vide  supra,  on  “  pseudo-Bede  I.” 

7 Kunstmann,  op.  cit.  142  ct  seqq.;  Wasserschleben,  Beitrage  125  et 
seqq.  and  Bussordnungeti  38  et  seqq.,  45-46.  But  Schmitz  II,  650  et 
seqq.  and  notes  claims  that  it  was  written  by  an  Iro-Scottish  monk 
from  the  Excarpsus  of  Bede  and  that  of  Egbert  and  Schmitz  there¬ 
fore  calls  it  the  “  Double  Penitential  Bede-Egbert.”  Cf.  H.  and  S. 
Ill,  326.  On  the  sources  of  Pseudo-Bede  II,  Wasserschleben.  loc.  cit. 

8  Wasserschleben  38  et  seqq.,  45 ;  Hildenbrand,  K.,  Untersuchungen 
iibcr  die  gcrmanischcn  Ponitentialbucher,  (Wurzburg,  1851),  39! 
Schmitz  II,  677. 

9 Hormann,  W.  von,  in  Fitting's  Melanges,  II,  9,  (Montpellier,  1908). 


THE  LITERARY  HISTORY 


489] 


131 


Bede  and  of  Egbert  were  taken  directly  from  those  peni¬ 
tentials.  Owing  to  the  doubt  attending  the  authorship  of 
the  Pseudo-Bedes  I  and  II,  it  is  impossible  at  present  to 
determine  their  importance  in  England  in  their  periods.1* 
From  the  number  and  geographical  dispersion  of  the  manu¬ 
scripts,"  the  influence  of  Penitential  II  would  seem  to  have 
been  extensive;  but  this  is  no  safe  criterion. 


SECT.  6.  THE  CONFESSIONAL  OF  PSEUDO-EGBERT 

Wilkins,3  and,  after  him,  Mansi 4  have  published,  as  gen¬ 
uine,  penitential  material  under  the  name  of  Confessionale 
et  Poenitentiale  Ecgberti  archiepiscopi  Eboracensis.  The 
Anglo-Saxon  text  has  been  published  in  an  improved  ver¬ 
sion,  with  variants  and  a  Latin  translation  by  Thorpe,5  who 
also  considered  it  the  work  of  Egbert  of  York.  Textual 
studies  of  the  Anglo-Saxon  version  have  been  made  also, 
by  Berbner,6  with  special  relation  to  the  language  employed. 
As  there  are  good  reasons  for  considering  the  Confessional 

1For  the  textual  influence  of  the  later  Pseudo-Bede,  see  Wasserschle- 
men,  247  and  passim.  Much  more  very  detailed  research  remains  toi 
be  done  before  these  matters  of  textual  relationships  of  the  two 
pseudo-Bedes  to  each  other  and  to  other  penitentials  can  be  clarified. 
In  particular  since  the  publication  of  Albers’  penitential,  detailed  tex¬ 
tual  comparisons  must  be  made  before  one  can  determine  whether  the 
borrowings  noted  by  Wasserschleben  as  from  Penitential  II  into  other 
penitentials  were  actually  from  that  source  or  from  similar  passages  in 
Penitential  I. 

2  For  the  list  of  MSS.,  vide  supra  and  the  editions  of  Wasserschleben 
and  Schmitz,  etc. 

3  Op.  cit.  I,  113-43  ;  H.  and  S.  Ill,  413;  Wasserschleben  locc.  citt. 

*Vide  H.  and  S.  locc.  citt.;  Mansi  xii,  431. 

5  Op.  cit.,  343-392.  The  Anglo-Saxon  text  follows  Cod.  C.  C.  C.  C. 
190,  with  variants  from  Bodl.  Jun.  121,  saec.  X  and  Bodl.  Laud.  F. 
I7»  saec.  XI,  and  from  a  Brussels  MS.  of  the  Burgundian  Library. 

6  Berbner,  dissertation  on  Untersu chung en  su  dem  altenglischen 
“  Serif tboc,”  (Bonn,  1907),  contributing  little  to  the  question  of  author¬ 
ship. 


ENGLISH  PENITENTIAL  DISCIPLINE 


132 


[490 


and  the  Penitential  separate  1  works,  we  shall  discuss  them 
as  such. 

Recent  scholarship  considers  that  the  Confessional  is  pos¬ 
sibly  of  Frankish  origin,  imported  into  England,  where  it 
was  translated  into  Anglo-Saxon  from  a  Latin  original.21 
Manuscripts 3  of  it  are  f  ound  in  England.  Wasserschle- 
ben4  seriously  doubts  if  Egbert  were  the  translator,  and  con¬ 
siders  it  the  work  of  a  later  time.  But  Haddan  and 
Stubbs  5  consider  that  the  matter  is  still  open  and  that  the 
older  portions  of  the  Confessional  and  the  fourth  book  of 
the  Penitental  may  have  been  by  Egbert  of  York.  The 
Confessional  borrowed  from  the  penitentials  of  Egbert 6 
and  of  Theodore,7  two  late  ones  of  Frankish 8  authorship, 
the  second  pseudo- Bede, 9  and  Cummean’s  10  penitential. 


xVide  infra. 

2 It  is  prefaced  by  “Hie  incipiunt  hujus  libri  capitula,  quern  librum 
confessionalem  vocamus.  Haec  capitula  Ecgbertus,  archiepiscopus 
Eboracensis  vertit  ex  latino  in  anglicanum.”  Wasserschleben  300,  note 
1 ;  cf.  A-S.  in  Thorpe,  loc.  cit. 

3  Vide  supra. 

4  Wasserschleben  42. 

5  H.  and  S.  Ill,  414,  cf.  415  nos.  i  and  iii  respectively. 

6  We  follow  the  Wasserschleben  edition  of  Conf.  Ps.  Egb.;  cf.  cans, 
xi-xii,  xiv,  sect.  3,  with  P.  Egb.,  cans,  x,  4,  v,  9-10,  20-21,  iii-iv,  in 
Wasserschleben  306-307. 

’Supplying  the  majority  of  borrowings:  cf.  Conf.  Ps.  Egb.,  cans, 
viii-ix,  xiii-xiv,  xvi-xxxiii,  xxxv-xli.  There  are  forty-one  chapters 
in  the  whole  of  the  Confessional. 

8  The  Penitential  of  Rheims,  ii,  3  cf.  i;  cf.  Conf.  Ps.  Egb.,  can.  ii. 
Cf.,  also,  Conf.  Ps.  Egb.,  can.  v,  with  the  Bigotian  Penitential,  ii,  1, 
sects.  6-7,  and  4,  in  Wasserschleben  305.  Compare  these  penitentials 
in  Wasserschleben  497  et  seqq.  and  44.1  et  seqq.  But,  assuming  the 
Confessional  as,  possibly,  Egbert’s,  the  borrowing  might  just  as  well 
have  been  the  other  way,  as  these  Frankish  penitentials  are  later  than 
Egbert. 

9C/.  supra,  that  head. 

10  Haddan  and  Stubbs,  loc.  cit.,  suggest  that  they  are  probably  from  the 


THE  LITERARY  HISTORY 


491] 


*33 


The  influence  of  the  Confessional  might  possibly  depend 
somewhat  upon  the  question  of  whether  or  not  it  was  written 
by  Egbert.  If  genuine,  it  would  probably  have  an  exten¬ 
sive  use,  especially  considering  that  the  vernacular  language 
employed  greatly  increased  its  utility.  Whether  or  not  it 
was  written  by  Egbert,  the  fact  of  its  being  in  the  verna¬ 
cular  would  greatly  increase  its  spread  in  a  period  when  there 
was  so  great  ignorance  among  the  clergy. 


SECT.  7.  THE  PENITENTIAL  OF  PSEUDO-EGBERT 

This  penitential  has  been  published  by  Wilkins; 1  Mansi; 2 
Thorpe;  3  Wasserschleben,  after  the  Latin  translation  of 
Thorpe;  and,  in  part,  by  Mone.4  Often  found  with  the 
Confessional 5  of  pseudo-Egbert,  it  is  considered  as  of 
separate  authorship.  The  penitential  proper  consists  of 
four  books  in  the  Anglo-Saxon  tongue,  purporting  to  be  a 
translation  from  a  Latin  original  by  Egbert  of  York.  But 
the  authenticity  of  this  ascription  is  now  generally 6  re- 

earlier,  genuine  Cummean  of  the  seventh  century,  But,  to  determine 
this,  it  is  now  necessary  to  collate,  with  passages  in  the  Confessional, 
others  in  the  MS.  of  the  earlier  Cummean  recently  published  by  Zet- 
tinger,  loc.  cit.,  supra,  chap.  i. 

1  Wilkins  op.  cit.  I,  1 13-143,  in  parallel  columns — Latin  and  Anglo- 
Saxon — from  MS.  C.C.C.C.,  L.,  XII,  now  190,  which  has  the  Confessional 
also.  Cf.  Wasserschleben  43-44;  H.  and  S.  Ill,  413  et  seqq.  In  the 
late  MS.  C.C.C.C.,  265,  ( formerly  K,  2 ),  the  Penitential  of  pseudo- 
Egbert  is  also  found,  together  with  other  works  wrongly  ascribed  to 
Egbert,  the  Pseudo-Theodore  and  some  Irish  canons;  vide  M.  Bateson, 
in  EHR.,  (1895),  320  et  seqq.  Miss  Bateson  regards  this  compilation 
as  written  in  an  English  hand  of  the  tenth  or  eleventh  century. 

2  Mansi  op.  cit.  XII,  441  et  seqq. 

*  Op.  cit.  362  et  seqq.,  with  better  notes  on  the  Anglo-Saxon  than 
Wilkins.  Cf.,  also  Berbner,  op.  cit.,  passim. 

4  Wasserschleben  318  et  seqq.,  43-44;  Mone  op.  cit.  501. 

5Cf.  supra,  on  the  Confessional. 

6 By  Wasserschleben,  Haddan  and  Stubbs,  Mone,  and  the  writers  in 
DNB.  and  DC  A.,  etc.,  locc.  citt.  Cf.  supra,  on  the  Penitential  of 
Egbert. 


*34 


ENGLISH  PENITENTIAL  DISCIPLINE 


[492 

jected,  with  the  possible  exception  of  Book  1  IV.  Books 
I  to  III,  inclusive,2  are  generally  recognized  as  a  translation 
Into  Anglo-Saxon  of  the  third,  fourth  and  fifth  books  of 
the  ninth  century  Penitential  of  Halitgar,3  in  paraphrase. 
According  to  Haddan  and  Stubbs,'1  Book  IV  of  this  compila¬ 
tion  may  possibly  be  by  Egbert  of  York.  Its  chapters  are 
largely  founded  upon  the  Penitential  of  pseudo-Cummean ; 5 
that  of  Theodore ; 6  some  slight  influence  of  Pseudo-Bede  7 
II ;  and,  possibly,  some  borrowing  from  the  pseudonymous 
Roman  Penitential.8 

Owing  to  the  very  great  thoroughness  of  its  many  chap¬ 
ters,  and  its  convenient  rendering  into  Anglo-Saxon,  the 
Penitential  of  pseudo-Egbert  probably  exercised  consider¬ 
able  influence  in  the  English  Church.  Borrowing  from  it 
is  seen  in  a  passage  in  the  work  of  a  canonist 9  of  the 
early  Norman  period;  and  the  influence  of  Book  IV  upon 
the  pseudonymous  Canons  of  Edgar  has  been  shown  by 

'Vide  infra. 

1  Except  can.  i  of  Book  II.  Vide  Wasserschleben  322  and  H.  and  S., 
loc.  cit. 

3  Cf.t  on  Halitgar,  supra,  chap.  i.  In  support  of  this  argument,  H.  and 
S.,  loc.  cit.,  after  Wasserschleben  43  et  seqq.,  emphasize  the  more  cor¬ 
rect  citation  of  learned  authors  by  Halitgar.  On  the  relations  between 
the  Pseudo-Egbert  and  the  Penitential  of  Halitgar,  cf.,  also,  the  dis¬ 
cussion  by  M.  Bateson  in  EHR.,  (1895),  320-326. 

4  H.  and  S.  Ill,  414-415;  cf.  supra,  on  the  Confessional. 

‘See  the  Wasserschleben  edition,  for  parallels. 

*lTide  Wasserschleben  345  ct  seqq. 

1  Vide  Wasserschleben  341. 

*  See  the  Wasserschleben  edition,  passim. 

0  The  anonymous  compiler  of  the  spurious  Leges  Hcnrici  Primi;  vide 
Liebermann,  Gcsctzc  II,  s.  v.  “  Pdnitcntialbiicher,”  p.  622,  after  Bateson, 
in  Jahrcsbcr.  Gcsch.-Wissenschaft,  (1905,  1907),  III,  96.  On  the  Con¬ 
fessional  see,  also,  other  works  cited  by  Schmitz  I,  570-571  and  Was¬ 
serschleben  42. 


THE  LITERARY  HISTORY 


135 


493] 

Mone.1  According  to  Wasserschleben  and  Mone,2  the  com¬ 
position  of  the  Penitential  falls  between  that  of  Halitgar 
and  the  second  half  of  the  tenth  century.  Schmitz  3  be¬ 
lieves  that  the  Penitential  exerted  great  influence  on  the 
Continent. 

SECT.  8.  THE  PSEUDONYMOUS  CANONES  EADGARI  OR  CANONS 

OF  EDGAR 

This  compilation  consists  of  extracts  from  various  works 
bearing  on  penance,  prefaced  by  certain  canons  purporting 
to  be  passed  under  King  Edgar,  in  the  second  half  of  the 
tenth  century.  Though  accepted  by  Thorpe  4  and,  apparently, 
by  Mansi  5  and  by  Wasserschleben,6  the  authenticity  of 
these  canons  is  rejected  by  Liebermann,7  the  best  authority 
on  the  Anglo-Saxon  Laws,  who  ascribes  them  to  an  in¬ 
dependent  canonist 8  of  the  tenth  century.  They  are  es¬ 
pecially  noteworthy  for  very  lax  provisions  of  commutations, 
through  substitutes,  for  powerful  men.9 

The  pseudonymous  penitential  canons  erroneously  ascribed 
to  Egbert,  to  Theodore  and  to  Edgar,  respectively,  are  also 
interesting  because  of  the  influence  10  exerted  by  them  on 
some  of  the  late  Anglo-Saxon  Laws. 

‘Mone,  Quellen  und  ForscJntngen,  (1844),  T,  501  et  seqq.,  edits  Lib. 
iv  more  completely. 

‘Wasserschleben  44. 

‘Schmitz  I,  176;  cf.  ibid.  570. 

‘Thorpe,  op.  cit.  395  et  seqq. 

‘Mansi,  op.  cit.  XVIII,  514  et  seqq.  Cf.  Thorpe,  op.  cit.  402  et  seqq.; 
Mone,  op.  cit.  529  et  seqq. 

‘Wasserschleben  49-50. 

’Liebermann,  Gesetse  I,  “  Einleitung ,”  passim  and  II,  s.  v.  “  Ponitens  ” 
and  “  Eadgari,”  no.  11. 

1 Vide  supra ;  possibly  eleventh  century. 

*Vide  supra,  chap,  iii,  under  commutations. 

10  Vide  Liebermann,  locc.  citt.,  supra;  also  ibid.  II,  s.  v.  “  Kanones” 
and  “  Ponitentialbiicher."  E.  g.  Can.  Ps.-Edg.  influenced  II  Cn.  and 
Northu. 


CHAPTER  V 


The  Anglo-Saxon  Laws  and  Their  Provisions  on 

Penance 

SECT.  I.  INTRODUCTORY 

Several  reasons  have  led  the  present  writer  to  discuss 
somewhat  fully  the  interaction  of  the  Penitentials  with  the 
Anglo-Saxon  Laws.  Among  the  first  has  been  the  scant 
treatment  which  this  subject  has  received  in  the  literature 
on  the  Penitentials  and  on  the  Germanic  laws.  The  absence 
of  detailed  discussion  of  this  important  sub j ect  is  all  the 
more  remarkable  because  of  the  potent  influence  of  religion 
on  the  primitive  laws  of  Germanic  peoples ;  the  intermingling 
of  secular  and  ecclesiastical  jurisdiction  in  pre-Norman  Eng¬ 
land;  the  numerous  laws  of  the  Anglo-Saxons  requiring  or 
enforcing  ecclesiastical  penalties  for  secular  crimes;  and  the 
consequent  functions  of  the  Anglo-Saxon  Laws  and  the 
Penitentials  as  mutually  assisting  and  explaining  the  work 
of  each  other. 

In  the  following  chapter  these  powerful  factors  in  the 
cooperation  of  penitentials  and  secular  laws  will  be  described. 

It  will  be  necessary  to  supplement  this  sketch  with  descrip¬ 
tions  of  the  practical  influence  of  this  cooperation.  Hence  . 
there  will  also  be  incorporated  brief  descriptions  of  the 
operation  and  effect  of  the  secular  laws;  of  the  provisions 
of  the  Penitentials  which  strengthened  the  enforcement  of 
the  secular  laws;  and  of  similar  phases  of  mutual  influence. 

136  [494 


495] 


THE  ANGLO-SAXON  LAWS 


137 


SECT.  2.  RELIGION  AND  LAW  AMONG  THE  PRIMITIVE 
GERMANIC  PEOPLES 

To  understand  and  appreciate  fully  the  mutual  interaction 
of  the  Penitential s  and  the  secular  laws  during  the  period 
studied,  it  is  very  necessary  to  reckon  with  the  influence 
of  pagan  religious  sanctions,  ceremonies,  and  officials  upon 
primitive  Germanic  Law.  Among  primitive  peoples,  re¬ 
ligion  occupied  a  place  of  great  importance,  exerting  a 
profound  influence  upon  practically  all  other  institutions, 
which  are  very  often  combined  with  some  religious  feature. 
Among  phases  of  law,  for  example,  we  find  that  the  con¬ 
cepts  of  crime,  the  ceremonies:  of  legal  procedure,  penalties, 
and  enforcement  were  influenced  by  religious  taboo,  ideas 
of  magic,1  and  of  “  mana  ”,2  veneration  of  ancestors,3  and 
fear  of  anthropomorphic  deities;'4  possibly,  also,  by  ideas 
of  animism.  In  particular,  the  power  of  pagan  priests  over 
discipline  and  law  provided  their  Christian  successors  with 
potent  weapons  to  aid  them  in  introducing  and  enforcing 
their  system  of  ecclesiastical  penances  and  other  penalties. 

lVide  Jenks,  Law  and  Politics  in  the  Middle  Ages,  (London,  1898; 
2d.  ed.,  1913),  chap,  viii;  Brunner,  Deutsche  Rechtsgeschichte,  (2  vols., 
Leipzig,  1887-1892;  2d.  ed.,  1906,  of  which  vol.  i  is  used),  I,  150,  184-185, 
245  et  seqq.,  216,  236,  248.  This  work  is  cited  hereafter  as  “  Brunner.” 
Cf.  a  general  article  by  Mauss,  in  RHR.,  XXXV,  49  et  seqq. 

2  On  “  mana  ”,  see  the  article  by  Mauss,  loc.  cit.,  supra.  For  examples 
of  the  belief  that  punitive  power  resided  in  the  safeguards  of  the  oath 
and  in  the  ordeal,  infra,  under  those  heads. 

3 Especially  in  the  system  of  feud  and  of  compensation;  vide  infra, 
those  heads. 

4E.  g.  as  shown  in  the  appeals  to  their  vengeance  upon  perjurers  and 
in  appeals  to  the  judgment  of  God  in  ordeals  and  in  trial  by  combat; 
vide  infra,  under  oaths,  ordeals,  etc. 

For  the  belief  that  “  Meinwerke” — e.  g.  treachery,  murder  of  kin, 
desecration  of  graves,  etc. — exposed  the  committor  to  the  direct  ven¬ 
geance  of  the  gods,  vide  Brunner  I,  248.  Cf.  ibid.,  passim,  on  the 
death-penalty  as  a  sacrifice  to  the  gods. 


ENGLISH  PENITENTIAL  DISCIPLINE 


138 


[496 


Pagan  priests  announced  the  assembly-peace ;  exercised  penal 
justice  in  the  army;  supervised  the  ritual  of  compurgation 
and  of  ordeals  and  the  execution  of  criminals;  declared  and 
aided  in  enforcing  outlawry  ;  and  probably  exercised  a  strong 
influence  over  customs  and  legislation.1 


SECT.  3.  THE  INTERMINGLING  OF  SECULAR  AND  ECCLE¬ 
SIASTICAL  JURISDICTION 

After  the  conversion  of  the  Germanic  peoples  to  Chris¬ 
tianity,  this  close  connection  and  mutual  influence  of  religion 
and  law  was  inherited  and,  at  first,  became  even  more  de¬ 
tailed  than  before.  In  pre-Norman  England 2  and  the 
Frankish  ^Empire,  the  closeness  of  this  connection  is  to  be 
seen  clearly  in  the  intermingling  of  secular  and  ecclesiastical 
jurisdiction;  and,  even  more  significant  for  our  thesis,  in 
the  passing  of  secular'4  laws  that  required  penance  for 
crimes. 

The  intermingling  of  secular  and  ecclesiastical  jurisdic¬ 
tion  5  during  the  pre-Norman  period  was  shown  in  the  sub- 

1  Vide  Brunner  I,  184,  248-249.  For  similar  powers  of  the  Celtic 
Druids,  cf.  Seebohm,  Tribal  Custom  115-116. 

2This  mutual  influence  did  not  cease  with  the  Norman  Conquest  but 
became  less  thereafter,  with  the  separation  of  the  bishop’s  court  from 
that  of  the  sheriff.  Even  then  royal  assistance  was  promised  for  ex" 
ecuting  sentences  of  the  bishop.  Vide  Stubbs,  in  Select  Essays  it* 
Anglo-American  Legal  History,  (3  vols.,  Boston,  1907-1909,  cited 
hereafter  as  “Select  Essays ”)  I,  256. 

3  Vide  infra,  sect.  6. 

4  Vide  infra,  sect.  6. 

5 On  the  general  intermingling  of  ecclesiastical  subjects  with  secular 
ones  in  the  Anglo-Saxon  Laws,  see,  particularly  Liebermann,  op.  cit. 
II,  s.  v.  “  Kir chenstaatsr echt,"  “  Geistliches  Gericht,"  etc.  Also  cf. 
Cutts,  Parish  Priests,  etc.,  chap,  v  and  p.  39,  mostly  without  references 
to  the  sources:  Bright,  Early  English  Church  102-103,  274  et  seqq ., 
333  et  seqq.,  410,  427,  30,  33-36,  41 1. 

The  term  “  synod  ”  which  is  frequently  used  in  the  prologues  to  the 
Anglo-Saxon  Laws,  connotes,  for  the  time  and  place,  either  an  eccle- 


THE  ANGLO-SAXON  LAWS 


139 


497] 

jects  for  legislation,  in  the  courts  of  law,  in  procedure  and 
in  other  important  respects.  Even  in  the  so-called  “  secular  ” 
laws  passed  by  the  pre-Norman  sovereigns  and  witan,  eccle¬ 
siastical  enactments  f  ormed  a  considerable  part  of  the  whole. 
In  some  cases  1  bishops  probably  dictated  or  strongly  in¬ 
fluenced  the  whole  content  of  individual  codes;  in  all  cases 
they  constituted  a  part  of  the  witan  and,  in  that  capacity, 
aided  in  formulating  and  interpreting  the  laws. 

At  least  until  the  growth  of  private  jurisdictions,  there 
were  no  distinct  ecclesiastical  courts  separate  from  the 
secular  ones;  though  there  may  have  been  “a  system  of 
church  judicature  with  properly  designated  judges,  and  a 
recognised,  though  not  well  defined  area  of  subject-matter 
in  persons  and  things.”  2  The  judicial  matters  of  the 
Church  were  apparently  transacted  in  the  ordinary  gemots 
of  the  hundred  and  of  the  shire.  Even  the  public  procedure 
in  ecclesiastical  cases  was  probably  customary  and  primitive, 
<4  and  differed  in  nothing  materially  from  the  lay  pro¬ 
cedure.”  3 

siastical  or  a  secular  council.  For  a  similar  intermingling  among  Celtic 
peoples,  see  the  Irish  synods  in  Wasserschleben  135-145  and  Seebohm, 
Tribal  Custom,  chap.  iv. 

1  Probably  with  Wihtred  and,  to  a  large  extent,  with  Alfred,  Ine, 
Ethelred  and  Cnut,  as  well  as  others.  Particular  sovereigns  em- 
phasing  ecclesiastical  enactments  were  Wihtred,  Alfred1,  Ethelred  andl 
Cnut.  Vide  Pollock,  F„  and  Maitland,  F.  W.,  History  of  English  Law 
before  ....  Edward  I,  (2  vols.,  Cambridge  1895;  2d.  ed.  used,  1898, 
to  be  cited  by  its  usual  abbreviation — “  P.  and  M.”),  I,  35.  note  5; 
Hodgkin,  Hist,  of  England  339,  363-366,  410;  Makower,  Constitutional 
Hist,  of  the  Church  of  England,  (English  translation,  London,  1895), 
sect.  2,  but  particularly  pp.  7  et  seqq.  and  sect.  59,  pp.  352  et  seqq.; 
Liebermann  op.  cit.  II,  s.  v.  “  Kirchenstaat,”  “  Kanoncs,”  “  Jurist.” 

*For  remarks  on  the  scarcity  of  source-materials  on  ecclesiastical  pro¬ 
cedure  before  the  Normans,  vide  Stubbs,  in  Select  Essays  I,  255.  For 
the  persons  and  things  under  ecclesiastical  jurisdiction,  vide  Liebermann, 
op.  cit.  II,  s.  v.  “  Bischof,”  “Gericht,”  “  Geistliche,”  etc. 

*  On  the  ecclesiastical  use  of  compurgation  and  ordeals,  infra,  sect. 
5 1  also,  Will.  18,  II  Cn.,  44,  VIII  Ethr.  19. 


140 


ENGLISH  PENITENTIAL  DISCIPLINE 


[498 

The  potent  influence  exerted  upon  the  law  by  Church  and 
priesthood  was  manifested  in  several  other  respects.1  The 
Church  substituted  Christian  formulae  and  ritual  for  the 
heathen  practices  previously  connected  with  methods  of  pro¬ 
cedure;2  Christian  priests  supervised  their  administration;3 
and  Christian  relics  and  other  sacred  objects  took  the  place 
of  pagan  ring,  sword,  or  altar;  while  the  Christian  God 
was  invoked  for  his  blessing  or  curse.'4  The  part  of  Chris¬ 
tian  priests  in  controlling  legal  procedure  was  so  important 
that  laws  were  passed  regulating  it.5  Finally,  Christian  ex- 
communication  and  other  deprivations  of  church-privilege, 
with  penance,  supplanted  the  curse  of  pagan  priest  and 
deity  upon  the  obstinate  breaker  of  the  peace.6 

1  For  further  details  on  the  attitude  and  influence  of  the  Church  upon 
procedure,  etc.,  infra,  sects.  3,  5. 

2  Vide  infra,  this  chapter,  under  oaths.  On  the  practices  of  fasting  and 
confession  before  ordeals  and  on  compurgation  in  churches,  etc.,  also 
see  Makower,  op.  cit.  59,  7,  9;  69,  20. 

3 Infra,  this  chapter,  under  ordeals.  See,  in  general :  Lea,  Superstition, 
etc.,  276,  409,  413-414,  415,  417;  Brunner,  op.  cit.  I,  261  et  seqq.', 
Liebermann,  op.  cit.  II,  s.  v.  “  Eid,”  “  Ordal “  Geistliche,,,  etc. 

iVide  Brunner,  op.  cit.  I,  258,  note  34,  257,  261  et  seqq.,  248  et  seqq., 
2  66. 

5E.  g.  punishing  a  priest  for  misconduct  in  the  ordeal,  NPL.,  39;  cf. 
Can.  Ps.  Edg.  62,  requiring  the  attendance  of  a  priest  at  ordeals,  (late, 
possibly  Frankish).  Also  cf.  Lea,  op.  cit.,  Pt.  Ill,  chap,  xviii;  Pollock, 
in  Select  Essays  I,  92;  Holdsvvorth  W.  S.,  History  of  English  Law, 
(3  vols.,  London,  1903-1909,  cited  hereafter  by  its  usual  abbreviation 
“  Holdsworth  ”),  II,  1 2. 

6  Originally  the  appeal  was  to  the  pagan  god  of  water  or  of  fire:  Pollock( 
in  op.  cit.  93;  Brunner,  op.  cit.  I,  262.  For  general  lists  of  passages  in 
the  Anglo-Saxon  Laws  that  were  specifically  influenced  by  the  Church, 
etc.,  vide  Liebermann,  op.  cit.  II,  .s.  v.  “  Kirchenstaatsrecht,”  “  Jurist f’ 
“Moral,”  “  Poenitentialbucher,”  etc;  also  infra,  chap.  vi. 


499] 


THE  ANGLO-SAXON  LAWS 


141 


SECT.  4.  SECULAR  REQUIREMENT  OF  ECCLESIASTICAL 

PENALTIES 

Turning  to  the  discussion  of  ecclesiastical  penalties,  we 
find  a  host  of  secular  enactments  requiring  penance,  ex- 
communication,  simple  exclusion  from  church,  deprivation 
of  consecrated  burial,  and  degradation  of  clerics,  either 
singly  or  as  combined  penalties,1  or  combined  with  secular 
penalties.  Particularly  important  for  the  influence  of  pen¬ 
ance  is  the  law  of  Alfred  concerning  sanctuary  or  Church- 
peace:  “It  is  also  church-peace:  if  any  man  seek  a  church 
for  any  of  those  offences  which  had  not  been  before  re¬ 
vealed,  and  shall  there  confess  himself  in  God’s  name,  he  it 
half -for given.”  2 

According  to  Liebermann,  penance  was  required  by  the 
secular  laws  for  (1 )  ecclesiastical  offences,  (2)  semi -eccle¬ 
siastical  offences,  and  (3)  purely  secular  crimes.  Among 
the  first  are  offences  like  work  on  holidays,3  breaking  fast, 
neglect  or  delay  in  baptising  children,  unchastity  of  clerics,4 
marriage  within  the  prohibited  degrees,5  and  incest,6  adultery 

10n  the  following,  see,  particularly,  Liebermann,  op.  cit.  II,  s.  v. 
“  Ponitens  ”,  “  Beichte  ”,  “  Kirchenstaatsrecht  ”,  “  Kanones  ”,  all  of  which 
cannot  be  commended  too  highly.  Also  see  the  articles  by  Hanna,  in 
Cath.  Ency.  XI,  632  et  seqq.  and  by  Thurston,  in  The  Tablet,  (London, 
Feb.  and  Mar.,  1905),  with  comments  on  these  articles  infra,  the  “Gen¬ 
eral  Bibliography.”  Cf.  the  required  possession  of  a  penitential  by  a 
priest,  supra,  chap,  i,  sect.  1. 

2  Vide  Alf.  5,  sect.  2,  according  to  Liebermann’s  edition.  For  materials 
on  church-peace  or  sanctuary,  vide  Liebermann,  op.  cit.  II,  s.  v. 
“  Frieden,”  “  Kirchenfriede,”  etc.  “  Half- forgiven  ”  probably  means 
commutation  of  part  of  the  money-bot. 

3  See  the  subject  in  Liebermann,  op.  cit.  II,  passim. 

*Vide  supra. 

*NPL.  10,  1  prescribes  spiritual  penance  for  neglect  to  baptise  a 
child;  vide  Liebermann,  op.  cit.  II,  619.  But  other  laws  for  this  provide 
for  both  penance  and  fine. 

*  Vide  infra,  this  chapter,  under  courts. 


142 


ENGLISH  PENITENTIAL  DISCIPLINE 


[500 

of  the  man,  fornication,  marriage  with  a  nun,  abduction 
of  a  widow,  defiling  of  a  nun,  the  breaking  of  vows  by 
monks,  paganism,  magic,  and  other  similar  crimes  or  of¬ 
fences.1  Other  offences  were  regarded  as  semi-ecclesias¬ 
tical  : 2  e.  g.  breach  of  pledge,3  perjury,  violation  of  church- 
peace,  homicide  by  a  cleric,'4  theft  and  perjury  of  clerics,51 
insubordination  of  clerics  against  a  bishop,  the  slaying  of 
clerics  or  of  monks,  secret  murder,6  and,  to  some  extent, 
homicide  in  general. 

To  make  the  alliance  'between  Church  and  State  even 
closer,  there  were  all-inclusive  enactments  by  secular  law, 
decreeing  penance  for  sins  in  general  and  for  violation  of 

1  For  distinctions,  vide  Liebermann,  op.  cit.  II,  loc  cit. 

‘Probably  those  which  came  under  the  joint  jurisdiction  of  bishop  and 
King,  especially  those  that  infringed  upon  the  public  peace  and  also 
had  a  certain  amount  of  impiety  attached.  Liebermann,  loc.  cit.,  no. 
2a,  gives  numerous  examples  of  the  close  interweaving  of  the  two> 
jurisdictions  in  the  laws  of  Edward  and  Guthrum,  Athelstan,  Edmund, 
Ethelred  and  Cnut. 

*Or  “  wed-bryce” — a  breach  of  the  pledge  given  by  the  accused  to 
guarantee  his  undergoing  proof.  As  the  accompanying  oath  was  safe¬ 
guarded  by  religious  sanctions  and  sworn  on  sacred  objects,  etc.,  break¬ 
ing  it  was  regarded  as  impiety.  Vide  infra,  this  chapter,  under  the 
oath. 

4Makower,  op.  cit.,  sect.  59,  p.  391,  remarks  that,  though  there  is 
strictly  a  distinction  between  the  power  to  impose  penance,  ("  potestas 
ordmis”),  and  the  judicial  power,  (“ potestas  jurisdictions ”),  yet, 
“  in  Anglo-Saxon  times,  they  apparently  overlapped  each  other  and,  to 
outward  observation,  the  imposition  of  penance  appeared  to  imply  a 
punitive  power  resident  in  the  Church  and  supplementing  the  punitive 
power  of  the  State.” 

5 Or  of  property  belonging  to  a  cleric. 

6  “In  occulto” — sometimes  the  Anglo-Saxon  “  Morth,”  usually  asso- 
dated  with  the  idea  of  magic ;  vide  Liebermann,  op.  cit.  II,  s.  v. 

“  Mord”  “  Zauber.” 


THE  ANGLO-SAXON  LAWS 


501] 


:43 


Church  canons  or  of  secular  law.1  The  terms  2  of  these 
laws  make  certain  that  they  directly  referred  to  eclesiastical 
penance,  rather  than  to  money  compensation  to  the  Church, 
though  this  is  sometimes  mentioned  in  addition  and  is 
found  in  other  sections.  General,  all-inclusive  enactments 
requiring  the  performance  of  ecclesiastical  penance  for 
secular  crimes  are  found  in  many  prologues  to  pre-Norman 
laws,  both  in  the  Anglo-Saxon  and  Latin  versions.3  The 
treaty  between  Edward  the  Elder  and  Guthrum  states  in 
the  prologue :  “  And  they  established  secular  penal  laws  also, 
for  that  they  knew  that  they  could  not  otherwise  guard 
against  (much  crime),  and  many  people  would  not  other¬ 
wise  subject  themselves  to  religious  penances,  as  they  shoidd 


1For  the  general  history  of  penance  in  Great  Britain,  supra,  chaps,  ii 
and  iii.  Lea,  Auricular  Confession  II,  106,  112,  erroneously  limits  the 
English  examples  to  the  late  II  Cn.  45  or  Cn.  Sec.  45,  which  he  uses 
from  Thorpe’s  version ;  but  Lea  cites  numerous  Continental  examples. 

Parallel  laws  of  the  Frankish  monarchs  have  been  noted  by  Lea, 
loc.  cit . ;  Funk,  in  Klex.  II,  s.  v.  “  Busse;”  Alzog,  Church  Hist.  II, 
165 ;  but  particularly  by  Gieseler,  Church  Hist.  II,  107,  54  and  note  25 
and  passim.  None  of  the  above  are  sufficiently  full. 

2  Liebermann,  op.  cit.  II,  s.  v.  “  Ponitcns  ”,  “  Beicht.”  Among  the  de¬ 
finite  terms  used  for  ecclesiastical  penance  in  the  Anglo-Saxon  Laws, 
according  to  Liebermann,  occur :  “  hot  ”,  with  or  without  the  addition  of 
“for  Gode”,  “with  God”;  “godbot”;  “  (ge)betan” ;  “doedbetan”, 
(godcund).”  For  confession,  etc. — “ script “  (ge)  serif  an”  ;  “  serif t- 
boc  ”,  etc.  The  latter  referred  to  a  penitential ;  vide  supra,  chap,  i, 
sect.  1. 

Liebermann  distinguishes  between  two  meanings  of  “  bot  ”  when  used 
in  an  ecclesiastical  sense — compensation  to  clerics  for  injuries,  loss, 
etc.,  and  another  meaning  including  ecclesiastical  penalties,  particularly 
penance. 

3  See,  in  general,  Liebermann,  op.  cit.  II,  s.  v.  “  Ponitenz” ,  “  Beicht”, 
“Kirchenstaatsrecht”,  “  Kanones”,  “  Bischof  ”,  “  Geistliches  Gericht”, 
etc.,  for  this  and  the  following.  Liebermann  expresses  this  view  very 
forcefully  when  he  says :  “  Der  Staat  macht  sich  allgemein  zum  zwang- 
svollstrecker  kirchlicher  Befehle,  wo  der  Laie  diesen  nicht  freiwillig 
gehorcht.”  It  even  punished  protectors  of  excommunicated  foes  of 
the  Church  with  confiscation  and  death.  Vide  Liebermann,  op.  cit. 
II,  j.  v.  “Kirchenstaatsrecht,”  nr.  20,  which  gives  many  instances  from; 
the  A-S.  Laws. 


144 


ENGLISH  PENITENTIAL  DISCIPLINE 


[S02 

do;  and  they  established  a  secular  compensation  jointly  for 
Christ  and  the  king,  wherever  anyone  should  not  wish  to 
subject  himself  lawfully  to  churchly  penance  according  to 
the  bishop’s  command  ( or  direction ) 

It  is  to  be  noted,  also,  that  this  treaty  formed  the  basis 
for  much  of  the  laws  of  Cnut,1  and  probably  continued  in 
operation  from  the  date  of  its  inception  till  shortly  before 
the  Norman  Conquest,  save  that  the  distinctions  between 
English  and  Dane  became  gradually  modified.  When  this 
is  compared  with  the  passage  f  rom  Alfred  regarding  church- 
peace,2  it  will  be  clearly  seen  that  the  laws  insisting  upon 
penance  f  or  crimes  are  becoming  more  general 3  and  in¬ 
clusive.  In  the  laws  of  Ethelred,  coming  much  later,  there 
were  decreed  several  all-inclusive  enactments  enforcing  the 
requirement  of  penance  for  crimes : 14  e.  g.  “  And  he  who 
henceforth,  in  any  way,  violates  genuine  laws  of  God  or 
man,  let  him  expiate  it  zealously,  according  as  is  proper,  as 
well  through  ecclesiastical  penance,  as  through  secular 
punishment .”  5  This  emphasis  upon  the  necessity  for  pen¬ 
ance  continued  into  the  laws  of  Cnut ; 6  but  the  passages  cited 
above  sufficiently  demonstrate  the  general  thesis.7 

Special  decrees  or  laws  demanding  penance  for  specific 
crimes  are  found  in  England  at  an  earlier  date  than  the 
general,  all-inclusive  laws.  Though  omitted  by  the  codes 

1 Vide  EGu.,  Prol.,  in  Liebermann,  op.  cit.  For  the  lasting  importance 
of  this  treaty,  vide  ibid.,  “  Einleitung  ”  and  in  his  third  volume. 

*  Cited  supra,  from  Alf.  5,  4. 

8  For  later  examples  of  general  enactments,  vide  Liebermann,  op.  cit. 
II,  loc.  cit.;  also  ibid.,  under  “Moral,”  and  “  Homiletisches.” 

4  Vide  VI  Ethr.,  i=X,  1,  in  Liebermann,  op.  cit.  I,  236-237. 

5  Cited  from  VI  Ethr.  50;  vide  Liebermann,  op.  cit.  I,  259.  The  italics 
are  the  present  writer’s. 

6  Vide  Liebermann,  op.  cit.  II,  s.  v.  “  Ponitens”  for  passages. 

’For  additional  passages  on  secular  penalties  enforcing  penance,  vide 
Liebermann,  op.  cit.  II,  j.  v.  “  Kanones,”  no.  4a;  “  Kir chcnstaatscrecht  ” , 
no.  24,  h.  and  nos.  20  et  seqq. 


THE  ANGLO-SAXON  LAWS 


503] 


145 


of  Etihelbert  and  of  Hlothaere  and  Eadric,  they  appear  in 
Kent  as  early  as  Wihtred,  who  provides  excommunication, 
with  penance,  for  fornication  and  also  gives  special  oath- 
privileges  to  a  communicant.1  In  Wessex,  there  is  no  dir¬ 
ect  mention  of  penance  for  crimes  in  the  earliest  secular 
laws  of  Ine,  thougfh  his  code  provides  special  oath-privileges 
for  communicants.2  With  the  laws  of  Alfred  we  meet,  for 
the  first  time,  any  attempt  to  extend  the  secular  requirement 
of  penance  for  crime,  his  code  specifically  mentioning  it  for 
breach  of  church-peace,  feuds,  and  perjury.3  The  Treaty 
between  Edward  the  Elder  and  the  Danish  chief  Guthrum, 
besides  the  passage  cited  in  the  earlier  paragraph,  has 
special  provisions  requiring  penance  for  incest  and  for  cer¬ 
tain  crimes  by,  or  injuries  to,  clerics.4  The  laws  of  Athel- 
stan  which  were  passed  at  Greatlea,  provided  particularly 
for  penance  for  perjury; 5  and  those  of  Edmund,6  for  slay¬ 
ing. 

Ethel  red  ‘embodies  some  provisions  of  the  Treaty  of1 
Edward  and  Guthrum  Which  prescribe  penance  and  adds 
several  general  enactments  requiring  it  for  homicide  by  a 


1Wih.  3,  4.  The  laws  of  Wihtred  have  attracted  most  attention  from 
modern  writers  on  religious  legislation  among  the  Anglo-Saxons ;  vide 
Bright,  Hunt,  Cutts  and  others,  opp.  citt.,  passim.  But  they  are  pro¬ 
portionately  small  in  scope,  as  compared  with  religious  provisions  in 
later  codes,  especially  in  that  of  Alfred  and  those  of  the  ninth  and 
tenth  centuries.  The  latter  were,  doubtless,  influenced  by  and  a  part 
of  the  religious  reforms  of  the  ninth  and  tenth  centuries.  Vide  supra, 
chap,  iv  and  infra,  under  individual  codes. 

tVide  Ine  15,  1  and  19. 

3  Alf.  1,  2 — re  “  wed-bryce ;  ”  5,  4 — re  Church-peace  and  feuds;  and  42, 
2 — re  feuds — limited  but  important  subjects. 

iEGu.  3 — ordained  person  fight  or  steal,  or  perjure  or  fornicate; 
EGu.  4 — for  incest;  EGu.  12 — for  injuries  to  clerics. 

5  II  Ath.,  (at  Greatlea),  25-26 — perjury,  in  particular. 

6 II  Edm.  4.  The  translation  by  Liebermann,  op.  cit.  I,  189,  differs 
from  that  in  Thorpe,  op.  cit.  106. 


ENGLISH  PENITENTIAL  DISCIPLINE 


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[504 


cleric,  breach  of  church-peace,  and  abandoning  a  cloister.1, 
Cnut  repeats  passages  on  penance  from  the  laws  of  Alfred 
and  of  Ethelred  and  from  the  Treaty  of  Edward  and 
Guthrum,  and  adds  some  provisions  of  his  own.2  The  late 
Hadbot /  ( ca .  A.D.  1030-1050),  regarding  expiation  for 
injuries  to  clerics,  prescribes  penance  as  well  as  the  payment 
of  money  compensations.  In  addition  to  the  passages  cited 
above,  there  are  numerous  passages  in  the  Anglo-Saxon 
Laws  that  require  confession'4  or  that  employ  ecclesiastical 
penalties  5  other  than  penance.  It  is  also  to  be  noted  that, 
where  later  laws  do  not  specifically  repeat  earlier  require¬ 
ments  of  penance,  this  does  not  imply  that  these  earlier  laws 
had  fallen  into  disuse;  for  the  early  English  laws  often 
left  much  implied  or  unstated. 

As  has  been  demonstrated,5  penitential  discipline  included 


1VIII  Ethr.  26-27,  after  EGu.  3 — theft  by  clerics;  vide  Liebermann, 
op.  cit.  II,  619.  Cf.  II  Cn.,  4a,  VI  Ethr.,  7 — for  magic,  after  EGu.,  11, 
in  Liebermann,  op.  cit.  I,  135;  cf.  op.  cit.  II,  619.  VIII  Ethr.,  26,  in 
Liebermann,  op.  cit.  I,  266,  which  he  regards  as  influenced  by  P.  Ps. 
Egb.,  can.  iv,  1 — for  homicide  by  a  cleric;  cf.  Legg.  Hn.  I,  73,  1.  For 
abandoning  a  cloister — V  Ethr.,  5=VI,  3a,  in  Liebermann,  op.  cit.  1, 
239  and  II,  619.  For  breaking  church-peace,  besides  compensation  to 
the  Church,  the  King  and  the  injured  person,  cf.  Liebermann,  op.  cit. 
II,  619. 

2  Cnut’s  Law  of  ca.  1020,  c.  14,  repeats  Alf.  1,  2,  on  “  Wed-bryce,” 
vide  Liebermann,  op.  cit.  II,  619.  Magic  is  penanced  in  II  Cn.,  4a,  1 
after  EGu.,  11.  For  theft  by  a  cleric — I  Edm.,  6  and  I  Cn.,  5,  3  after 
EGu.,  3.  On  church-peace  see,  also,  VIII  lEthr.  3=/  Cn.  2,  3,  in 
Liebermann,  op.  cit.,  passim.  On  homicide  by  a  cleric  see,  also,  II  Cn. 
41-4 2=VIII  Ethr.  26,  in  Liebermann,  op.  cit.  I,  2 66. 

3  For  penances  in  Hadbot,  vide  Liebermann,  op.  cit.  I,  466  et  seqq. 

4  Laws  mentioning  or  requiring  confession  in  an  ecclesiastical  sense 
include:  Alf.  5,  4;  EGu.  5 —II  Cn.  44 —Hn.  I,  11,  9  and  66,  4;  VI 
Ethr.  2 7=J  Cn.  la;  VIII  Ethr.  1,  1  and  2,  2,  1  =VIII  Ethr.,  a,  2;  / 
Cn.  23,  ( cf .  P.  Egb.,  can.  i,  2,  9,  10  and  P.  Ps.  Egb.,  can.  xl;  Can 
Ps.  Edg.,  can.  lxv;  Can.  Aelfr.,  xxxi.) 

sVide  supra,  chaps,  ii,  iii. 


THE  ANGLO-SAXON  LAWS 


505] 


147 


severe  disabilities  or  humiliations  of  the  penitent,  besides 
the  performance  of  strictly  penitential  practices.  It  con¬ 
noted  not  only  fasting,  vigils,  pilgrimages,  prayers  and  the' 
like,  but  also  excommunication,  deprivation  of  all  church 
rites  and  of  the  right  of  consecrated  burial1  in  some  cases. 
Some  public  penitential  acts  of  humiliation  were  sometimes 
provided,  though  the  extent  of  the  latter  phase  is  somewhat 
in  question  for  England. 

Some  of  these  penalties  are  explicitly  mentioned  in  the 
secular  laws  of  pre-Norman  England  and  were  apparently 
resorted  to  in  extreme  cases.  Excommunication  for  crime 
appears  specifically  as  early  as  Wihtred.  The  crimes  thus 
punished  are  extended  in  number  thereafter,  especially  dur¬ 
ing  the  reform  movement  of  the  tenth  century,  in  the  laws 
of  Ethelred;  2  and  deprivation  of  consecrated  burial  is  men¬ 
tioned  specifically  by  Athelstan,3  as  punishment  for  obstin- 
ancy  in  perjury.  Nor  were  these  penalties  so  weak  as  at 
present.  The  ban  of  excommunication  which  was  often 
used  in  cases  of  outlawry,  as  well  as  in  those  above-men¬ 
tioned,  was  greatly  feared  because  of  the  terrible  curses 
which  the  customary  f  orm  heaped  upon  each  member  of  the 
culprit’s  body  and  upon  all  persons 4  who  aided  him. 

They  carried  additional  social  force  in  that  the  excom- 


1Vide  supra,  chaps,  ii,  iii,  on  the  possibility  of  reconciliation  of  the 
dying. 

*  Vide  Liebermann  op.  cit.  II,  s.  v.  “  Exkommunikation”  etc.,  and 
especially  the  laws  of  Ethelred  and  of  Cnut,  in  the  passages  on  enforce¬ 
ment  of  penance  cited  supra,  q.  v.  for  others. 

'Vide  II  Ath.  2 6;  Edm.  Eccl.  2;  V  Ethr.  29,  VI,  36,  IX,  41;  II  Cn. 
67,  for  excommunication;  cf.  supra  chap.  iii. 

4  For  the  formulae  for  excommunication  used  in  early  England,  vide 
Liebermann  op.  cit.  I,  438,  and  his  texts  of  these.  The  formulae  of 
church-bann  curse  the  parts  of  the  body  and  the  pseudonymous  Canons 
of  Edgar  confess  the  sins  of  these;  cf.  the  latter  in  Thorpe,  Ancient 
Laws,  etc.,  404. 


ENGLISH  PENITENTIAL  DISCIPLINE 


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[506 


municated  person  was  ipso  facto  debarred  from  the  royal 
court,  with  an  attendant  loss  of  social  enjoyment,  political 
advancement  and  power.1  In  addition,  the  sentence  usually 
involved  general  social  ostracism  and  sometimes  physical 
danger.  The  strictly  secular  penalties  for  refusal  to  per¬ 
form  penance  or  to  obey  other  ecclesiastical  penalties  in¬ 
cluded  deprivation  of  the  right  to  have  penance  commuted, 
or  required  additional  hot  to  the  Church  and  to  the  king.2 

In  summary,  the  foregoing  discussion  has  shown  clearly 
that,  with  increasing  thoroughness  and  severity,  the  pre- 
Norman  kings  constantly  enforced  penitential  practices  as 
supplementary  aids  to  the  suppression  of  disorder  and  crime. 
In  doing  so,  they  naturally  did  not  replace  with  their  own 
the  authority  over  penance  already  vested  in  bishop  and 
priest;3  but,  undoubtedly,  they  strongly  reinforced  the  actual 
performance  of  penance  by  the  threat  of  additional  secular 
penalty,  social  ostracism,  and  personal  disfavor  at  court. 
Pre-Norman  England  was  very  slowly  converted,  suffered 
several  relapses  of  portions  of  the  population  into  paganism, 
and  may,  at  first,  have  offered  some  resistance  to  penance. 
As  will  be  demonstrated,14  the  general  conditions  in  England, 
during  the  period  in  question,  represented  a  fierce  conflict 


1Vide  Liebermann  op.  cit.  II,  .y.  v.  “  Exkommunikation;  ”  cf.  Bright 
Early  English  Church ,  205  and  note  3,  208,  443,  459.  For  the  parti¬ 
cularly  severe  treatment  of  the  excommunicated  by  the  Carolingian 
kings,  cf.  an  excellent  brief  discussion  by  Moeller,  Church  History  II, 

115- 

1  See  the  references  cited  in  the  notes,  supra.  In  particular  Alfred  5> 
4  and  EGu.  Prol.  contained  commutations  for  penance.  Cf.  also, 
supra,  the  references  on  the  laws  of  various  early  English  kings  re¬ 
quiring  penance;  and  Liebermann  op.  cit.  II,  j.  v.  “  Ponitenz.” 

*The  'State  made  the  Church’s  demands  upon  the  people  its  own 
matter,  to  be  strictly  enforced.  Vide  Liebermann,  op.  cit.  II,  s.  v.\ 
“  Kirchenstaatsrccht,”  no.  22  and  no.  24,  d.  et  seqq.;  “Kirche;”i 
“  Ceistlichc;  ”  “ Bischof “Ponitenz;"  “  Kirchcnfriedc." 

iVide  infra,  sect.  5. 


THE  ANGLO-SAXON  LAWS 


1 49 


507] 

between  the  powers  of  order  and  disorder,  of  crime  and 
public  peace.  During  that  struggle  both  secular  and  eccles¬ 
iastical  discipline  cooperated  in  the  process  of  socialising 
and  civilising;  and,  in  that  cooperation,  the  effect  of  peni¬ 
tential  measures  was  undoubtedly  greater  than  has  hitherto 
been  supposed. 

SECT.  5.  THE  OPERATION  OF  THE  ANGLO-SAXON  LAWS. 

It  has  now  been  shown  that  there  was  close  connection 
between  the  secular  legal  system  of  the  Anglo-Saxons  and 
the  system  of  penance,  through  the  secular  laws  requiring 
penance.  It  will  be  necessary  now  to  describe  briefly  the 
operation  of  the  Anglo-Saxon  legal  system,  in  order  to 
observe  in  what  respects  and  to  what  extent  these  laws  needed 
assistance  from  other  sources  outside  the  secular  govern¬ 
ment. 

It  is  generally  known  that  the  application  of  Anglo-Saxon 
law  was  influenced  by  several  extra-legal  sanctions  common 
to  primitive  peoples  and  found  developed  among  other  Ger¬ 
manic  tribes.1  Custom  and  taboo  were  reverenced  as 
though  filled  with  a  mysterious,  punitive  power.  In  the 
absence  of  developed  political  machinery,  social  ties  of  kin¬ 
ship  and  of  class  continued  to  direct  a  large  part  of  custom, 
even  down  to  the  Norman  Conquest.2  A  great  part  of  the 

1  On  Germanic  legal  institutions :  infra,  “  General  Bibliography, v 
especially  the  works  of  Brunner,  Jenks,  Maurer,  etc.;  also  the  re¬ 
ferences  in  this  chapter,  passim. 

2 Jenks,  on  “Teutonic  Law,”  in  Select  Essays  I,  62  and  in  Law  and 
Politics,  chap,  i,  especially  pp.  20  et  seqq.  Examples  are  the  blood- 
feud,  kin-solidarity,  etc. ;  vide  infra.  On  the  declarative  and  con¬ 
solidate  nature  of  the  Anglo-Saxon  Laws :  Alf.,  Prol.  49,  8-9;  Pollock, 
in  Select  Essays  I,  97-98;  P.  and  M.  I,  1  et  seqq.;  Brunner,  ERQ.,  4-$ 
and  in  Select  Essays  II,  8,  note  1 ;  contra,  Stubbs,  Constitutional  Hist. 
I,  194-195.  On  the  time,  place  and  transmission  of  the  Anglo-Saxon 
Laws :  essays  by  Brunner  and  by  Maitland  in  Select  Essays;  Brunner, 
ERQ.,  passim ;  Liebermann,  op.  cit.  I,  “  Einleitung  ”  and  vol.  iii.  On 
social  discrimination,  infra. 


ENGLISH  PENITENTIAL  DISCIPLINE 


150 


[508 


law  was  based  on  unwritten  custom,  leaving  some  gaps  in 
our  sources  of  information.  These  gaps  must  be  partly 
filled  from  other  documents,  among  which  the  Penitentials 
are  important.  From  another  view-point,  the  strength  of 
custom  would  naturally  affect  attempts  at  innovation  by 
the  Penitentials. 

Much  of  the  enforcement  of  tribal  or  even  of  national 
customary  laws  regarding  crime,  was  left  to  the  methods  of 
self-help  or  of  kin-help.1  By  this,  the  plaintiff  must  person¬ 
ally  summon  his  opponent  to  court,  demand  a  security  that 
he  appear  for  proof,  and  sometimes  even  execute  the  sen¬ 
tence  of  the  court  upon  the  defendant.  In  this  procedure 
and  in  the  actual  trial,  (both  plaintiff  and  defendant  might 
be  supported  2  by  their  respective  kindreds.  In  the  earlier 
period  the  State  actually  discouraged  appeals  to  its  power; 
and,  even  when  the  king  was  willing  to  aid  the  execution 
of  justice,  “  the  efficiency  of  these  powers  varied  according 
to  the  king’s  means  and  capacity  for  exercising  them.”  3 
There  was  a  strange  lack  of  executive  power,  and  the  Anglo- 
Saxon  courts  had  not  gone  far  beyond  a  stage  in  which 
jurisdiction  was  “merely  voluntary,  derived,  not  from  the 
authority  of  the  State,  but  from  the  consent  of  the  parties.”  * 

lVide  Pollock,  in  Select  Essays  I,  95,  for  an  able  contrast  of  the 
modern  legal  system  with  the  crude  Anglo-Saxon  methods;  alsot 
Brunner,  op.  cit.,  s.  v.  “  Sclbsthilfe.”  Cf.  Alf.  42,  on  feuds;  and  P.  and 
M.  I,  25. 

JOn  extra  process  of  law:  Brunner,  op.  cit.  I,  251-252,  but  particularly 
254-255  and  its  excellent  notes.  A  limited  form  of  self-help  persisted 
down  to  the  time  of  Cnut;  cf.  Laughlin,  in  Essays  in  A-S.  Law, 
(Boston,  1876),  185-186  and  Pollock,  in  Select  Essays  I,  95-96.  Cf.  a 
late  example  under  Henry  II,  in  Select  Essays  I,  1 19-120. 

‘Pollock,  in  Select  Essays  I,  92. 

4  Pollock,  in  op.  cit.  I,  95 ;  cf.  P.  and  M.  I,  49  et  seqq.  For  assistance 
by  the  king:  Brunner,  op.  cit.  I,  122,  118-119,  260;  Stubbs,  Constitu¬ 
tional  Hist.  82 ;  Lea,  Superstition,  etc.,  47;  also  infra,  on  kin-respon¬ 
sibility,  compurgation,  compensation-payments,  etc.  On  self-help  see, 
also,  Liebermann,  op.  cit.  II,  s.  v.  “Sclbsthilfe”,  “  Rcchtsweigerung”, 
“  Notwchr  ”,  etc. 


THE  ANGLO-SAXON  LAWS 


509] 


151 


The  responsibility  and  power  of  the  kindred  are  seen  in 
the  fact  that  the  compurgators  for  the  trial  were  usually 
chosen  from  among  them; 1  his  kin  probably  aided  the 
plaintiff  in  demanding  the  fulfillment  of  sentence; 2  some¬ 
times  avenged  his  death  by  the  blood- feud  or  received  the 
compensation  money  from  the  murderer  or  his  kin; 3  went 
surety  for  an  accused  kinsman;  and  stood  responsible  for 
his  conduct.4  The  method  of  kin-responsibility  in  policing 
is  especially  seen  in  the  exercise  of  the  power  of  mund. 
This  resided  in  the  male  head  of  the  clan  or,  sometimes,  in  a 
lord,  and  not  only  meant  protection,  but  also  disciplinary 
power,  even  of  life  and  death,  at  times.5  To  some  extent 
this  may  have  acted  as  a  deterrent  from  crime;  but  we  shall 
see,  later,6  that  the  system  was  open  to  grave  abuse  from 
the  inherent  probabilities  of  clan  prejudice  and  combination 
to  prevent  conviction  and  the  enforcement  of  penalties. 

The  most  injurious  phase  of  self-help  or  kin-help  was  the 
practice  of  the  blood- feud.  In  spite  of  later  attempts  to 
limit  the  number  of  persons  exposed  to  it  and  the  right  to 
carry  on  feud,  and  in  spite  of  the  growing  development  of 
the  king’s  peace,  extreme  cases  of  the  practice  of  the  blood- 
feud  continued  in  England  even  as  late  as  after  the  Norman 


1  Vide  supra,  also  infra,  on  procedure;  Brunner,  op.  cit.  I,  123 
and  its  many  references ;  Stubbs,  Constitutional  Hist.  I,  82,  after 
Northu.  51,  Hn.  64,  4  and  others.  Cf.  Lea,  locc.  citt. 

2  Vide  Lea,  Superstition,  etc.  4 7;  Brunner,  op.  cit.  I,  260;  Young  in 
Essays  in  A-S.  Law  122.  But  cf.  infra,  under  procedure. 

*Vide  infra,  under  blood-feud  and  compensations. 

4 For  further  matter,  infra,  this  chapter,  on  the  payment  of  compensa¬ 
tions. 

5 On  the  nature  and  extent  of  the  kindred:  Brunner,  op.  cit.  I,  sect. 
29,  p.  327  and  passim ;  Liebermann,  op.  cit.  II,  s.  v.  “  Magcn,”  “  Sippe,” 
etc. 

On  mund:  Liebermann,  op.  cit.  II,  s.  v.  “Mund”,  “  Schuts” ,  “  Friede” , 
“  Friedensbruch” ,  etc;  Shadwick,  Anglo-Saxon  Institutions  151-153. 

‘Vide  infra,  on  enforcement,  etc. 


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[51° 


Conquest.  In  addition,  private  vengeance  was  allowed  in 
certain  restricted  cases,  though  it  must  be  authorised  by 
previous  permission  of  the  court  or  afterwards  justified,  be¬ 
fore  1  it.  As  a  result  of  the  foregoing,  the  legal  permission 
of  feuds  and  of  private  vengeance,  even  if  'limited,  tended 
towards  private  warfare  and  rule  by  f  orce.  That  this  natural 
tendency  towards  lawlessness  and  violence  continually  reas¬ 
serted  itself  is  shown  by  the  complaints  in  the  prologues  to 
the  laws  of  some  of  the  strongest  kings,  e.  g.  Edward  the 
Elder,  Athelstan  and  others.2 

In  penalties  it  is  well-known  that  the  Anglo-Saxon  Laws 
represented,  as  a  whole,  a  transition  state,  with  slight  ten¬ 
dencies  towards  true  punishments  for  crimes  against  the 
State.  The  predominant  penalties  were  money  compensa¬ 
tions  to  the  injured  or  to  his  kin.3  In  specially  heinous 
cases,  severer  penalties  of  confiscation  or  forfeiture,  death 
or  slavery,  mutilation,  imprisonment  as  a  temporary 
measure,  exile  and  outlawry  were  used  as  means  of  enforce- 

1On  vengeance  and  the  blood-feud:  Liebermann,  op.  cit ,  II,  s.  v. 
“  Fehde”,  “  Blutrache” ,  “  Selbstlulfe” ,  etc.;  Brunner  op.  cit.  I,  221-222, 
1 19,  227  et  seqq.  197,  148,  25 7,  sects.  12-13;  P.  and  M.  I,  237  et  seqq.; 
Jenks,  Law  and  Politics,  101-102,  197,  225-227,  257-258  (excellent). 
For  its  persistence:  Hodgkin,  Hist,  of  England,  304;  P.  and  M.  I,  31; 
Pollock,  in  Select  Essays  I,  94-96;  Brunner  op.  cit.  I,  163;  Jenks,  op. 
cit.,  102. 

2  Vide  infra,  this  chapter,  under  compensations  and  enforcement. 

8 In  general  see:  P.  and  M.  I,  26,  48-49;  Pollock  in  Select  Essays  I, 
102;  Liebermann  op.  cit.  II,  s.  v.  “  Strafen”  and  under  individual 
crimes;  and  particularly  Wilda,  Strafrccht  dcr  Germanen,  (Halle,  1842), 
169-1S4;  also,  Brunner,  op.  cit.  I,  220  et  seqq.  sect.  22,  pp.  386-387,  99 
note  42,  216,  184-185. 

For  “  botless,”  inexpiable  crimes  which,  however,  gradually  dimin¬ 
ished  in  numbers :  Liebermann  op.  cit.  II,  s.  v.  “  Busslos,”  “  Bot” 
“  Todschuldig,”  etc.;  Jenks  op.  cit.,  104-105;  Laughlin  in  Essays  in  AS 
Law,  273-274 ;  and  Wilda,  locc.  citt. 

For  the  names  of  the  penalties :  Liebermann,  op.  cit.  II,  s.  v. 
"Strafen-,”  Brunner,  op.  cit.  passim. 


THE  ANGLO-SAXON  LAWS 


511] 


153 


ment.  In  the  main,  however,  these  were  extraordinary 
measures,  apparently  used  but  seldom.1 

If  sufficiently  severe  and  properly  enforced,  the  compen¬ 
sation  system  was  an  improvement  over  the  blood- feud, 
which  it  supplanted  historically.  Its  chief  defect,  among 
the  Anglo-Saxons,  lay  in  the  comparatively  low  value  placed 
upon  human  life.  Then,  too,  it  probably  played  into  the 
hands  of  the  rich  and  powerful  clans,  while  it  may  have 
often  sent  into  convict-slavery  the  poor  man  unable  to  pay 
compensation.2  Judging  by  the  history  of  the  fining  system 
today,  the  system  of  compensations  as  penalties  for  crimes 
probably  increased  crime  as  compared  with  the  effect  under 
true  punishments,  especially  among  the  rich.  Nor  do  we 
need  to  rely  upon  modern  analogies,  f  or  the  prologues  to  the 
Laws  are  marked  by  complaints  against  “  manifold  fight¬ 
ings  ”  and  denial  of  or  resistance  to  justice.3  Offenders 

*P.  and  M.  I,  126,  remark  that  the  only  punishments,  applicable  in  a 
proper  sense  to  freemen,  were  money  fines  and  death,  the  latter  when 
redemption  by  a  money  fine  was  not  allowed. 

Death  or  convict-slavery  was  prescribed  for  paganism,  a  thief 
caught  in  the  act  and  cognizance  of  theft,  vide.  Wih.  26  and  Ine  7,  1 
and  6;  sometimes  as  an  alternative.  iSee  also  Liebermann  op.  cit.  II, 
J.  v.  "Strafe,”  “  Todesstrafe,”  “  Vermogenseinsiehung.” 

On  mutilation;  Ine  18 — frequent  theft  by  a  freeman;  Alf.  32,  6,  withl 
alternative  of  redemption.  For  perjury,  (rarely),  infra.  Exile  was 
rarely  used:  III  Ath.  6,  1;  Egu.  11,  as  a  last  resort  for  magicians, 
soothsayers,  perjurers,  “  morthworkers ;  ”  sometimes  also  for  obstinate 
contempt  of  court — V  Ath.,  Prol. 

On  outlawry  as  a  means  of  enforcement,  infra,  this  chapter,  under 
the  latter  heads ;  also  P.  and  M.  I,  27. 

Severe  penalties  were  prescribed  for  counterfeiting,  especially  by 
Cnut;  see  that  head  in  Liebermann  op.  cit.  II. 

2Slavery  was  the  penalty  for  nonpayment  of  compensations;  vide 
Liebermann  op.  cit.  II,  s.  v.  “  Strafknecht”,  “  Verkncchtung.” 

3  Vide  I  Edm.,  II  Edm.,  Ill  Edg.,  IV  Edg.,  V  Ethr.,  for  complaints 
of  lawlessness.  Cf.,  also,  P.  andi  M.  I,  27-28,  after  II  Ath.  3;  cf.  cap. 
17,  IV  Ath.  3,  and  VI  Ath.  8;  also  Pollock,  in  Select  Essays  I,  94. 
For  penalties  against  those  who  were  “  frequently  accused  ”  or  “  of 
no  credit,”  vide  P.  and  M.  loc.  cit.,  after  III  Edg.  7  and  II  Cn.  33,  22. 


154 


ENGLISH  PENITENTIAL  DISCIPLINE 


[5121 

were  frequently  maintained  by  great  men  in  defiance  of  law. 
Athelstan,  victor  of  Brunanburh,  bad  to  make  ordinances 
against  lawlessness  of  this  kind,,  while  weaker  princes  left 
it  without  remedy,  because  they  were  powerless  to  amend 
it.  Great  difficulty  was  experienced  in  obtaining  specific 
evidence  and  in  compelling  accused  and  suspected  persons 
to  submit  themselves  to  justice  and  to  pay  their  fines  if 
convicted.  This  may  serve  to  explain  the  severe  penalties 
in  the  later  laws  against  those  who  were  “  f  requently  ac¬ 
cused  ”  or  “  of  no  credit.” 

The  overwhelming  majority  of  cases  were  tried  in  the 
local  courts  of  the  county  and  the  hundred.1  For  ordinary 
judicial  affairs  the  hundred-court  was  the  judicial  unit.  At 
some  time  during  the  later  Anglo-Saxon  period,  royal 
authority  added  private  jurisdictions — manorial  and  eccle¬ 
siastical.  These  grew  until  they  had  become  numerous  and 
powerful 2  in  the  century  just  preceding  the  Norman  con¬ 
quest.  In  these  private  courts  the  procedure  was  like  that 
of  the  hundred-court  and  the  jurisdiction  was  also  controlled 
by  the  shire.8  Justice  under  private  jurisdiction  may  or 

1For  courts:  P.  and  M.  I,  14  et  seqq.  and  passim;  Liebermann  op.  cit. 
II,  s.  v.  “  Gericht  ”,  “Verfahren”,  “ Hundred ”,  “Mark",  etc.;  Brunner 
op.  cit.  I,  251-256  and  s.  v.  “  Ding ”,  “  Rechtsgang  ”,  Verfahren ”,  etc.; 
Holdsworth,  Hist,  of  English  Law  I,  3-9  and  passim. 

On  the  jurisdiction  of  the  witan :  P.  and  M.  I,  48;  the  cases  in  the 
appendix  to  Essays  in  A-S.  Law;  Alf.  4;  II  Cn.  64. 

On  the  hundred  and  shire  courts  also  see  P.  and  M.  I,  42;  Pollock, 
in  Select  Essays  I,  90;  Hodgkin,  Hist,  of  England,  428-429;  and  Stubbs 
Constitutional  History  I,  102  et  seqq. 

JFor  summaries  of  the  extended  controversies  over  the  rise  of  private 
jurisdictions,  vide  P.  and  M.  I,  19-20;  Pollock,  in  Select  Essays  I,  91 ; 
Vinogradoff,  English  Society  in  the  Eleventh  Century,  (Oxford,  1908), 
90-140;  -Maitland,  Domesday  Book,  etc.,  especially  “Essay  II,”  sect.  5, 
pp.  318  et  seqq.;  and  under  “sac"  and  “  soc”  in  Liebermann  op.  cit. 
II.  Also  the  criticisms  of  Maitland’s  views  by  Round,  in  EHR.,  XV, 
293  ct  seqq. 

3Adams,  in  Essays  in  A-S.  Law,  54.  Note  qualifications  as  to  terri¬ 
torial  jurisdiction,  particularly  just  before  the  Norman  Conquest,  in 


THE  ANGLO-SAXON  LAWS 


155 


513] 

may  not  have  been  worse  or  better  than  in  the  local  courts ; 
the  question  is  indeterminate  because  of  tlhe  lack  of  reliable 
statistics.  In  the  earlier  period,  before  the  growth  of  private 
jurisdictions,1  so  far  as  ecclesiastical  jurisdiction  was  con¬ 
cerned,  the  bishop  sat  with  the  shire-reeve  in  the  hundred- 
court  and  there  judged  cases  coming  within  ecclesiastical 
jurisdiction.2 

The  methods  of  procedure  at  trials  placed  the  processes 
attending  conviction  in  the  hands  of  powerful  clans  and 
were  permeated  with  class  discrimination.  Important  parts 
of  the  procedure  probably  fostered  perjury  also.  These 
conclusions  are  based  upon  investigation  of  the  connections 
between  the  various  stages  of  procedure,  the  methods  of  self" 
help  or  kin-help,  and  the  social  classes  and  organisation  of 
the  pre-Norman  period.  In  particular,  a  very  close  connec¬ 
tion  may  be  traced  between  the  Penitentials  3  and  the  system 
of  compurgation. 

Among  the  three  forms  of  proof  4  used,  compurgation  ap¬ 
plied  to  the  greater  number  of  cases,  even  of  heinous  crimes ; 
unless  the  accused  were  notoriously  an  habitual  criminal  or 

Maitland  Domesday  Book,  etc.,  116  et  seqq.  5 2,  80-107,  310;  and  by 
Hodgkin,  op.  cit.  440. 

xVide  supra. 

*  Heavy  penalties  were  imposed  for  fighting  in  his  presence — Alf.  15; 
he  was  paid  bot  for  borh-bryce — Ine  45 ;  was  given  control  over  the 
woman  taken  in  incest  or  adultery — EGu.  4;  over  ecclesiastics  andi 
strangers — EGu.  12;  sanctuary  for  thieves — IV  Ath.  6;  sanctuary  in 
general — VII  Ethr.  5;  over  penance,  with  the  priest — II  Ath.  2 6  and 
others  mentioned  in  Liebermann,  op.  cit.  II,  618  and  under  “  Bischof,” 
“  Geistliches  Gericht  ” ,  “  Geistliche,”  etc. 

He  was  present  at  the  gemot — II  Edg.  5 ;  and  the  Church  claimed 
for  him  even  a  large  share  of  the  directing  of  secular  justice.  Vide 
P.  and  M.  I,  16-17;  Stubbs,  Constitutional  Hist.  I,  263;  Select  Charters 
75- 

'Vide  infra,  chap,  vi,  under  the  penances  for  perjury. 

4 Oaths,  ordeals,  documents;  the  latter  very  rarely.  The  court  fixed  the 
form  of  proof  but  compurgation  was  more  frequent,  particularly  in 
the  earlier  period;  vide  infra. 


ENGLISH  PENITENTIAL  DISCIPLINE 


156 


[5H 


otherwise  unworthy  of  oath.1  Compurgators,  to  aid  the 
accused  in  swearing  himself  innocent  of  the  crime,  were 
usually  chosen  from  the  vicinity,  class  or  kin  of  the  accused,2 
in  numbers  that  varied  according  to  his  rank  3  and  the  alleged 
crime.  In  view  of  the  strong  kin  solidarity  characteristic 
of  the  period,14  it  is  extremely  probable  that  there  was  organ¬ 
ised  perjury  among  powerful  kin  to  protect  their  accused 
kinsmen;  in  fact  the  later  attempts;  to  have  the  compurga¬ 
tors  chosen  from  among  candidates  previously  chosen  by  the 
magistrate  5  strongly  point  that  way.  As  the  clearing-oath 
of  a  noble  was  worth  several  times  that  of  a  single  f  reeman, 
it  would  seem  that  there  was  a  serious  defect  in  the  much- 
vaunted  Germanic  liberties.  Court  procedure  made  it  many 
times  easier  for  the  noble  to  escape  conviction  than  for  the 
common  freeman.6  Against  a  possible  objection  that  there 

1On  compurgation:  Liebermann,  op.  cit.  II,  s.  v.  “  Eideshilfe,”  etc.; 
Brunner,  op.  cit.  I,  257  et  seqq.,  131  et  seqq.,  151,  note  7,  205,  123,  267, 
344,  note  15. 

2  H.  and  E.  S',  II  Ath.  9;  Wiht.  19,  21;  EGu.  3;  VIII  Ethr.  19-20; 
Brunner,  op.  cit.  I,  123,  260;  Northu.  51,  b. ;  Young,  in  Essays  in  A-S. 
Law  144;  'Seebohm,  Tribal  Custom  413-414,  (excellent). 

Chosen  at  first  by  the  accused  but  later  by  the  magistrate,  a  change 
apparently  due  to  abuse  of  the  earlier  system.  Vide  Lea,  op.  cit.  47; 
Laughlin,  in  op.  cit.  298,  after  I  Aethr.  2,  (ed.  Schmitz)  ;  K.  Maurer, 
in  Kritishe  Uberschau  V,  199. 

* Vide  infra,  on  social  discrimination;  also  in  Liebermann,  op.  cit.  II, 
under  individual  ranks,  for  oaths. 

iVide  supra,  this  chapter,  under  kin-help. 

5For  references,  vide  supra,  notes. 

Compurgation  was  used  in  most  cases  at  the  discretion  of  the  court; 
vide  Lea,  op.  cit.  51-52.  The  oath  was  not  to  individual  facts  but 
partook  of  the  principal’s  oath  of  denial:  Lea,  op.  cit.  33-34;  Laughlin, 
in  Essays  in  A-S.  Law  1 86,  188;  Brunner,  op.  cit.  II,  375;  Pollock,  in 
Select  Essays  I,  38-39;  P.  and  M.  I,  37.  When  compurgation  was 
allowed,  it  was  final;  vide  Pollock,  op.  cit.  I,  98. 

6  Vide  Liebermann,  op.  cit.  II,  j.  v.  “  Eid”,  “  Eideshelfer,”  etc.  and 
under  the  names  of  the  various  ranks;  Lea,  op.  cit.  21  et  seqq.',  Brunner, 
op.  cit.  I,  387.  In  each  class,  the  number  of  compurgators  might  vary, 
also,  according  to  the  crime. 


THE  ANGLO-SAXON  LAWS 


15  7 


515] 

could  not  'have  been  much  organised  perjury  because  the 
kin  would  not  defend  a  bad  case,  may  be  urged  the  above 
facts  which  are  based  upon  reforms  and  objections  contem¬ 
porary  to  the  laws.  This  class  discrimination  is  seen  also 
in  the  compensations  for  injuries  and  death.1 

The  closest  connection  'between  the  secular  laws  and  the 
Church,  however,  is  to  be  seen  in  the  well-known  religious 
safeguards  2  of  the  oath.  The  oath  was  to  'be  sworn  in 
forms  and  upon  material  accessories  3  which  were  regarded 
as  being  endued  with  religious  power.  Sworn  thus  the  oath 
may  have  operated  as  an  ordeal,  on  account  of  the  popular 
belief  that  misfortune  would  follow  perjury  and  especially 
because  of  the  direct  'supernatural  power  'then  credited  to 
relics.4  Thus  the  deadly  sins  of  sacrilege,  impiety  and 
blasphemy  were  added  to  that  of  perjury.  Hence  the  pun¬ 
ishment  of  this  offence  was  naturally  assigned  to  Church 
courts  and  to  penance.  But  the  efficacy  of  this  safeguard 
against  perjury,  even  in  that  superstitious  age,  must  have 

lVide  Liebermann,  op.  cit.  II,  under  “  Wergeld”  and  the  names  for 
the  various  ranks.  Contra,  for  some  offences,  some  laws  prescribed 
heavier  penalties  for  criminals  of  higher  rank;  vide  Alf.  18,  II  Cn. 
53,  Wih.  s,  II  Ath.  17,  EGu.  3. 

2 On  these  safeguards:  Brunner,  op.  cit.  I,  257;  Pollock,  in  Select 
Essays  I,  92;  Lea,  op.  cit.  58  et  seqq.,  370  et  seqq.;  Liebermann,  op. 
cit.  II,  s.  v.  “  Eid  ”,  “  Eidesform  ”,  “  Eidesformeln.” 

3 In  churches,  on  altars,  or  relics,  or  on  the  hands  of  one  ordained;  or 
on  a  cross,  or  the  name  of  God,  or  the  Gospel ;  vide  Liebermann,  ut 
supra.  For  further  details,  especially  as  connected  with  penance, 
infra,  chap,  vi,  under  perjury.  An  oath  of  peace  might  be  sworn  on 
weapons;  or,  for  other  purposes  in  the  case  of  the  Northmen  in  Eng¬ 
land,  on  holy  oathrings;  or  on  the  hand  of  the  reeve,  (one  citation); 
or,  in  a  limited  case,  on  the  hand  of  a  kinsman  who  is  not  a  compur¬ 
gator;  or,  for  foreigners,  sometimes  on  a  stone  or  by  a  false  god. 

4  For  such  traditions  centering  around,  e.  g.,  the  black  cross  of 
Abingdon,  vide  Lea,  op.  cit.  374  and  note  3  ;  also  other  examples  in  Du 
Cange,  j.  v.  “  Sacr amentum,”  and  in  Brunner,  op.  cit.  I,  261,  note  44. 


i58  ENGLISH  PENITENTIAL  DISCIPLINE  [516 

varied  a  great  deal,  depending  upon  the  relative  suggestibility 
of  the  individual  or  his  moral  callousness. 

To  offset  the  danger  of  pur  jury  or  of  false  witness  being 
committed  and  to  punish  them  when  detected,  a  few  of  the 
secular  1  laws  provided  severe  secular  penalties.  The  laws 
of  Ine  penalise  perjury  in  an  oath  to  ownership  of  property 
which,  it  is  alleged,  has  been  stolen,  by  a  penalty  double  the 
combined  value  of  the  fine  and  the  article;  while  another 
passage  penalises  false  witness  'before  a  bishop  by  a  fine  of 
one-hundred  twenty  shillings.  The  treaty  of  Edward  and 
Guthrum  punishes  a  man  in  orders  who  forswears  either  by 
the  wergild  or  by  fine,  according  to  the  case,  besides  penance. 
A  passage  in  the  laws  of  'Cnut  penalises  perjury  committed 
on  relics  by  the  loss  of  the  hand  or  by  one-half  the  wergild. 
Perjurers  who  will  not  perform  penance  are  to  be  visited 
with  exile,  according  to  several  laws.  While  other  laws 
make  the  perjurer  unworthy  of  future  oath,  thus  practically 
punishing  him,  in  the  event  of  his  future  trial,  by  demand¬ 
ing  the  ordeal  as  proof.  Evidently,  then,  Brunner  is  mis¬ 
taken  in  limiting  secular  punishment  for  perjury  to  the  time 
of  Cnut  forward. 

Secular  laws  also  ordered  the  stringent  execution  of 
ecclesiastical  penalties  for  perjury.  By  far  the  chief  burden 
of  preventing  and  punishing  perjury  and  false  witness,  how¬ 
ever,  was  put  upon  the  laws  and  discipline  of  the  Church. 
This  discipline  operated  chiefly  through  penance  and  the 
Penitentials,  a  subject  that  will  be  discussed  later.2  In  spite, 
however,  of  the  Germanic  scorn  for  perjury  and  of  the 
secular  government’s  stand  against  it,  there  is  strong  prob- 

lVide  Licbermann,  op.  cit.  II,  s.  v.  “  Meincid ;  ”  cf.  Brunner,  op.  cit. 
II,  68  and  note  2,  682  and  note  34;  Ine  35,  1,  and  13;  II  Cn.  36;  EGu. 
11;  II  Cn.  6;  I  Edzu.  3;  and  others  in  Lieberman,  loc.  cit. 

'Vide  infra,  chap.  vi. 


THE  ANGLO-SAXON  LAWS 


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159 


ability  that  the  secular  forces  1  that  fostered  it  were  greater, 
Perjury  was,  apparently  very  prevalent 2  in  that  period  and 
what  was  accomplished  against  it  must  be  done  largely 
through  ecclesiastical  discipline. 

In  certain  cases,  however,  it  is  well  known  that  there 
were  appeals  to  the  “  Judgment  of  God  ”  in  ordeals.3  Of 
various  kinds,  these  were  used  after  failure  in  compurga¬ 
tion  ; 4  or,  without  compurgation,  in  cases  especially  under 
suspicion;6  in  specially  designated  crimes;  for  the  kinless, 
strangers,  those  previously  perjured  or  frequently  accused; 
and  for  those  of  notorious  ill-repute.  The  principal  forms 
of  ordeals  are  well-known.6  Like  the  oath,  ordeals  were 

1On  the  Germanic  scorn  for  perjury:  Brunner,  op.  cit.  I,  212,  123, 
260-261,  257;  II,  681  and  sect.  45,  which  needs  qualifying. 

On  the  meaning  of  perjury  among  the  Anglo-Saxons,  vide  Pollock, 
in  Select  Essays  I,  92  and  passim. 

Forces  fostering  it  were  the  system  of  kin-solidarity,  shown  in  the 
choice  of  kinsmen  as  compurgators ;  the  insistence  on  fixed  numbers 
of  oath-helpers  taking  oath,  in  many  cases,  to  matters  outside  their 
knowledge;  the  class  discrimination  which  aided  the  possibility  of 
perjury  among  the  upper  classes.  Vide  supra,  on  compurgation. 

’Favoring  the  great  prevalence  of  perjury  then  are:  Lea,  Superstition, 
etc.  31-32;  K.  Maurer,  in  Kritische  Uberschau  V,  199;  Pike,  History 
of  Crime,  etc.  I,  55.  For  evidence  of  the  growing  lack  of  confidence 
in  compurgation  :  Lea,  op.  cit.,  chap,  vii,  pp.  67  et  seqq.,  61  et  seqq.,  371 
et  seqq.,  85,  268;  Laughlin,  in  Essays  in  A-S.  Law  299  et  seqq. 

’On  ordeals,  see:  the  works  of  Lea  and  of  Jenks,  supra,  passim ; 
Jenks,  essay  on  “  Teutonic  Law  ”  in  Select  Essays,  I,  passim ;  Federico 
Patetta,  Le  ordalie,  (Turin,  1890);  P.  and  M.  I,  39;  Brunner,  op.  cit. 
I,  176,  182  et  seqq.,  261  et  seqq.,  II,  400-491,  409,  413,  499,  394,  377,  371 
et  seqq. ;  Liebermann,  op.  cit.  II,  s.  v.  “  Ordal  ” ;  Liebermann,  “  Kes- 
selfang  bei  den  Westsachsen  in  siebenten  Jahrhunbcrt” ,  in  Sitzungsb- 
erichte  d.  Akad.  der  Wissenschaften  zu.  Berlin,  (1896),  II,  829-835, 
which  revises  all  previous  works  on  the  origin  of  the  ordeal  in  Eng¬ 
land. 

4 Vide  supra,  this  chapter,  under  compurgation;  and  Liebermann, 
Gesetze  II,  s.  v.  “Ordal”,  “  Eideshelfer.” 

6  Vide  Liebermann,  op.  cit.  II  s.  v.  “Ordal”  for  the  following. 

•Lea,  op.  cit.  2 77  et  seqq.,  303  et  seqq.,  chap,  viii  of  his  “Part  III,” 


x6o  ENGLISH  PENITENTIAL  DISCIPLINE  [518 

preceded  and  attended  by  religious  ritual  and  formulae,  in¬ 
tended  to  overawe  the  guilty  into  confession  or  to  make  him 
commit  mistakes  in  the  ritual  of  the  ordeal.  Any  faltering 
or  formal  mistakes  were  regarded  as  evidence  of  guilt  and 
severely  punished.1 

Owing  to  the  fearful  physical  injury  attendant  upon  the 
hot-water  and  hot-iron  ordeals,  and  the  danger  in  others, 2 
it  is  difficult  to  imagine  how  they  could  have  failed  in  con¬ 
victing.  But,  in  the  opinion  of  an  eminent  authority : 3 
“  The  results  were  probably  less  remote  from  rough  justice 
than  we  should  expect,  and  it  seems  that  the  proportion  of 
acquittals  was  larger.  Certainly  people  generally  believed 
to  be  guilty  did  often  escape,  how  far  accidentally  or  other¬ 
wise,  we  can  only  conjecture.”  Even  after  allowing  for 
the  contemporary  belief  in  miraculous  intervention  and  for 
the  efficacy  of  ordeals  as  torture  to  extort  confession,  the 
inefficacy  of  ordeals  to  secure  convictions  was  probably 
greater  than  one  would  anticipate.4  There  was  evidently 
danger  of  collusion  to  protect  the  accused  by  the  priest,  or 
by  the  friends  or  relatives  of  the  accused,  by  various 
methods.5  But,  whatever  the  causes,  convictions  in  the 

339  et  seqq.,  chap,  ix  and  passim;  supra,  notes,  for  other  works  on 
ordeals,  passim.  Various  requirements  of  the  ordeals  and  peculiarities 
of  the  liturgy  of  the  ordeal  in  England  are  noted  by  Liebermann,  op. 
cit.  II,  s.  v.  “  Ordal”  and  under  the  individual  kinds  of  ordeals. 

1  For  insistence  on  formalism,  vide  Liebermann,  op.  cit.  II,  s.  v. 
“  Ordal,"  nos.  16,  31  and  32. 

’For  the  power  of  religion  in  the  ordeal:  Lea,  locc.  citt.;  Brunner, 
op.  cit.  I,  262  and  passim-,  Pollock,  in  Select  Essays  I,  92;  Laughlin, 
in  Essays  in  A-S.  Law  300  et  seqq.  For  class  discrimination  in  the 
ordeals,  vide  Lea,  op.  cit.  318,  58,  278,  287. 

’Pollock,  in  op.  cit.  I,  92,  with  excellent  references;  and  Lea,  op.  cit. 
406. 

4 For  the  earlier  confidence  in  the  ordeals,  vide  Lea,  op.  cit.,  “Part 
III,”  chap.  xvi. 

5  Lea,  op.  cit.  404-406  and  note  4.  For  a  law  against  its  abuse,  vide 
NPL.  39;  cf.  Maitland,  Select  Pleas  in  the  Manorial  Courts,  (London, 
1889),  I,  3-5,  63  and  passim. 


THE  ANGLO-SAXON  LAWS 


161 


5r9] 

ordeals,  especially  in  the  common  cold-water  ordeal,  were 
extremely  rare  and  many  guilty  persons  must  have  escaped. 
The  inefficiency  of  ordeals  to  insure  conviction  is  especially 
shown  in  the  growing  lack  of  confidence 1  in  them  in  all 
quarters  during  the  time  when  they  were  still  in  use. 

SECT.  6.  ENFORCEMENT  IN  THE  ANGLO-SAXON  LAWS 

Possibly  the  weakest  phase  of  the  Anglo-Saxon  Laws  was 
the  general  lack  of  extensive,  powerful  machinery  for  en¬ 
forcing  court-decisions  by  direct,  official  coercion,  when  nec¬ 
essary.  In  connection  with  these  weaknesses  in  enforcement 
and  those  in  penalties,  previously  noted,  the  Penitentials 
played  a  most  important  part  which,  until  now,  has  been 
much  under- rated  and  misunderstood.2  Fully  to  appreciate 
the  aid  given  by  the  penitential  discipline  in  these  respects 
it  will,  therefore,  first  be  necessary  to  discuss  briefly  the 
methods  of  enforcement  used  by  the  Anglo-Saxon  Laws. 

For  enforcing  payment  of  compositions  to  the  injured  or 
to  his  kin,  after  a  court  award,  private  3  distress  or  seizure 
was  used,  in  case  payment  was  not  voluntary.  The  se- 

1Lea,  loc.  cit.;  cf.  ibid.  402,  chiefly  from  Continental  cources.  Cf., 
also,  the  belief  in  the  efficacy  of  magic  in  ordeals,  Lea,  op.  cit.  407. 
For  the  opposition  of  the  Church  to  ordeals,  vide  Lea,  op.  cit.  421 
et  seqq. 

Liebermann,  however,  remarks :  “  Doch  gelang  tatsachlich  das  Ordal 
manchmal,  sogar  das  Eisenordal  und  Feuerordal ;  ”  vide  Liebermann, 
op.  cit.  II,  j.  v.  “  Ordal,”  nos.  10  and  6.  But  he  remarks  also  that  they 
appeared  much  more  perilous  than  the  proof  by  oath  and  that  many 
fled,  in  spite  of  the  severe  penalties  against  evading  ordeals ;  vide  loc. 
cit.,  nos.  17,  a,  b,  c. 

’The  Penitentials  were  particularly  influential  in  providing  what  were 
really  penalties  for  disobedience  to  the  sentences  of  the  secular  courts, 
when  defendants  refused  to  pay  compensation  or  otherwise  denied 
justice;  vide  infra,  chap.  vi. 

3  For  compositions  and  other  penalties,  vide  supra.  On  the  methods 
of  self-help,  kin-help,  the  blood-feud,  etc.,  supra,  sect.  5.  But  cf., 
also,  the  rise  of  the  king’s  peace,  infra. 


ENGLISH  PENITENTIAL  DISCIPLINE 


162 


[520 


curity  which  had  been  given  by  the  defendant  or  his  kin  as 
a  pledge  that  he  would  submit  to  proof  might  be  seized ;  or 
other  property  of  the  defendant  might  be  attached  by  the 
plaintiff  as  a  pledge  that  the  judgment  would  be  paid.  In 
default  of  payment  by  the  accused  or  by  his  kin1  or  in 
case  his  property  was  insufficient,  his  person  might  be  seized 
as  a  convict-slave  or  “  wite-theow  In  any  case,  judgment 
was  executed  2  personally  by  the  plaintiff  or  by  his  kin ;  and, 
in  extreme  cases  of  refusal  of  the  defendant  to  do  justice, 
“  he,  (the  plaintiff),  might  take  the  law  into  his  own  hands, 
in  fact,  wage  war  upon  his  obstinate  opponent.” 

This  method  of  self-help  or  kin-help  was  liable  to  several 
grave  dangers.  Where  justified  legally,  it  might  and  likely 
did  lead  to  violence  and  confusion,  especially  in  view  of  the 
facility  for  executing  vengeance  and  carrying  on  feud  af¬ 
forded  by  these  primitive  laws.  Nor  could  it  readily  3  be 
carried  out  successfully  against  the  strong  or  influential  in- 


1  Vide  Liebermann,  op.  cit.  II,  s.  v.  “  P fan  dung  ”,  “  Pf and”,  “  Besch- 
lagnahme",  “  Vermogenseinziehung”,  “  Rechtsweigerung”,  “  Selb- 
sthilfe ”,  “  Burg schaft,”  etc.;  Pollock,  in  Select  Essays  I,  95-96;  Jenks, 
op.  cit.  103-104,  259-261;  Brunner,  op.  cit.,  passim,  which  has  excellent 
bibliography.  For  cases  where  the  king’s  officials  might  (rarely)  be 
called,  infra. 

2 'Liebermann,  op.  cit.  II,  s.  v.  “  Verknechtung” ,  “  Strafknecht” ,  etc.; 
P.  and  ,M.  I,  33,  35;  Pollock,  in  Select  Essays  I,  98;  Hodgkin,  Hist,  of 
England  225-226,  114-116,  303.  Pollock  and  Maitland,  loc.  cit.,  re¬ 
gard  slavery  as  the  working  out  of  a  debt,  but  Hodgkin,  op.  cit.  225, 
considers  that  the  children  were  also  slaves,  even  if  born  after  con¬ 
vict-slavery  was  incurred  by  the  parent.  Against  the  latter  may  be 
cited  a  law  of  Edgar,  at  Exeter,  (ca.  A.D.  924),  cap.  6,  apparently 
limiting  penal  servitude  in  proportion  to  the  crime  or  “  as  belongs 
thereto;”  cf.  Lieberman,  locc.  citt.  By  a  law  of  Ine,  {cap.  7,  1),  the 
whole  family,  save  for  children  under  ten  years,  might  be  enslaved 
for  complicity  in  theft  committed  by  the  head  of  the  household ;  but 
cf.  II  Cn.  76,  for  restraints  placed  on  greedy  bailiffs.  The  quotation 
is  from  Pollock,  in  op.  cit.  I,  96. 

iVide  supra,  sect.  5. 


THE  ANGLO-SAXON  LAWS 


521] 


163 


dividual  or  clan.  Usually,  even  as  late  as  Cnuit,1  the  officials 
of  the  king  were  to  be  called  in  only  as  a  last  resort  in  the 
execution  of  right.  The  danger  of  abuse  in  unfounded 
claims  was  distinctly  recognised  and  guarded  against  by 
several  laws.2 

As  a  last  resort,  analogous  to  the  taking  of  vengeance  by 
the  individual,  there  was  the  declaration  of  outlawry.  The 
obstinate  resister  of  the  law  was  put  outside  of  its  protec¬ 
tion,3  being  declared  an  enemy  to  the  whole  folk,4  until  again 
“  inlawed,”  or  brought  into  the  peace.5  The  outlaw  was  to 
be  hunted  down  and  slain,  a  fugitive,6  on  whose  head  a 
price  was  sometimes  set,  exposed,  without  hope  of  redress 
or  of  protection.7  According  to  late  sources,  he  might  also 
forfeit  his  property,  though  his  kin  sometimes  had  the 
privilege  of  redeeming  it  under  certain  conditions.8 

1 Vide  supra,  this  chapter,  under  self-help,  kin-help  and  procedure; 
Pollock,  in  Select  Essays  I,  95;  P.  and  M.  I,  47-48.  At  a  somewhat 
later  date,  we  find  the  acceptance  and  payment  of  compositions  en¬ 
forced  by  putting  the  obligation  under  the  special  sanction  of  the 
king’s  peace ;  vide  II  Edm.  and  Be  Wergilde  4,  in  Liebermann’s  edition. 

3  Vide  Jenks,  op.  cit.  260. 

s0n  outlawry:  Brunner,  op.  cit.,  s.  v.  “  Friedlosigkeit,”  “  A  cht,”  sect. 
23,  pp.  232  et  seqq . ;  Liebermann,  op.  cit.  II,  j.  v.  “Friedlos,”  “  Flucht- 
ling,”  “  A  cht,”  etc.;  and  supra,  this  chapter,  under  vengeance. 

4  Vide  Liebermann,  locc  citt.  and  his  “  Worterbuch.” 

6For  Anglo-Saxon  and  Danish  cognates  to  the  English  “outlaw,” 
vide  Liebermann,  locc.  citt.;  cf.  Brunner,  op.  cit.  I,  232  et  seqq. 

6  Or  “  Ayma  ”;  vide  Liebermann,  locc.  citt.  and  Laughlin,  in  Essays  in 
A-S.  Law  271  and  note  11,  after  Schmid. 

On  the  degrees  of  outlawry,  vide  Brunner,  op.  cit.  I,  243  et  seqq. 
and  notes  55-56. 

7  An  outlaw  may  be  killed  without  compensation  and  the  killer  acts 
in  the  interests  of  all;  vide  Brunner,  op.  cit.  I,  232  and  note  5. 

For  other  severe  provisions,  vide  Laughlin,  loc.  cit;  Brunner,  loc. 
cit.;  Liebermann,  op.  cit.  II,  s.  v.  “  Friedlos,”  “  Beherbergen,”  “  Hcr- 
berge,”  etc.  On  the  execution  of  outlawry,  vide  Brunner,  op.  cit.  I, 
232-233,  236  et  seqq. 

8Brunner.  op.  cit.  I,  235  et  seqq.  and  notes;  cf.  Liebermann,  op.  cit. 
II,  s.  v.  “Friedlos,”  “  A  cht,”  etc. 


ENGLISH  PENITENTIAL  DISCIPLINE 


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[ 5 22 


In  theory,  and  for  individuals  whose  kin  were  of  ordinary 
or  of  inferior  strength,  it  would  seem  that  the  penalty  of 
outlawry  would  have  sufficed  to  effect  a  submission  of  the 
obstinate  or  their  escape  from  the  country.1  In  the  known 
absence  2  of  judicial  or  executive  machinery  or  procedure  for 
officially  executing  court  sentences,  it  would  seem  rather 
that  the  execution  of  a  sentence  of  outlawry  would  also  be 
left,  in  general,  to  the  individual  or  kin.  Hence,  the  natural 
process  of  executing  outlawry  would  be  the  feud.  Powerful 
kindred,  therefore,  would  be  able  to  secure  their  rights  from 
the  weaker,  or  might  naturally  and  successfully  back  up  an 
outlaw  relative  in  resisting  the  execution  of  outlawry.  With 
the  growing  power  3  of  feudal  lords  in  the  later  pre-Norman 
period  in  particular,  offenders  were  actually  so  maintained 
by  great  men,  in  open  defiance  of  common  right ;  and,  it  is 
probable  that  weaker  princes  left  it  without  remedy,  because 
powerless  to  amend  it  as  to  over-powerful  clans;4  while 
even  energetic,  otherwise  powerful  kings,5  were  unable  to 
stamp  it  out  completely. 

1  Laughlin  and  Brunner,  locc.  citt.,  emphasise  the  theoretical  effect  of 
outlawry,  without  due  allowance  for  the  power  of  great  men  and  of 
powerful  kin  in  supporting  one  who  resists  justice;  cf.  supra. 

2  Vide  supra,  under  self-help,  kin-help,  blood-feud,  weakness  of  ex¬ 
ecutive  power,  etc. 

3 For  the  weakening  of  the  royal  power  by  the  increasing  power  of 
great  lords,  vide  Stubbs,  Constitutional  Hist.  I,  208  et  seqq. 

4 Vide  P.  and  M.  I,  27-28;  II  Ath.  3,  17;  VI  Ath.  8.  Pollock,  in 
Select  Essays  I,  94-95,  remarks  that,  in  cases  where  the  king’s  power 
might  be  invoked,  “  it  is  obvious  that  the  process  was  barely  disting¬ 
uishable  from  that  of  combatting  open  rebellion.”  On  the  feeble¬ 
ness  of  the  king’s  executive  power  see,  also,  P.  and  M.  I,  14-15  an(f 
27;  Hodgkin,  Hist,  of  England  428-429.  For  the  difficulties  in  Alfred’s 
time,  vide  Stubbs,  Constitutional  Hist.  I,  183  and  note  3.  The  king 
might  send  out  commissioners  to  inquire  how  justice  was  done,  though 
he  could  not  interfere  with  actual  decisions;  vide  Pollock,  in  Select 
Essays  I,  91-92. 

5E.  g.  Alfred,  Edward  the  Elder,  Athelstan,  Edgar  and  Cnut.  See, 


THE  ANGLO-SAXON  LAWS 


523] 


165 


It  is,  to  be  sure,  well  recognised  that  individuals,  particu¬ 
larly  among  the  later  kings,1  materially  extended  the  royal 
power  politically  and  territorially;  and  especially  that  there 
was  a  gradual  development  of  the  idea  of  the  king’s  peace, 
particularly  among  the  later  pre-Norman  kings.2  But  this 
development  was  very  gradual,  as  the  earlier  conceptions  of 
the  king’s  peace  were  very  limited  in  extent,  and  the  fuller 
extensions  came  late.3  Moreover,  it  is  especially  noteworthy 
that  the  very  period  4  in  which  the  conception  of  the  king’s 
peace  was  narrowly  limited,  the  period  of  its  beginnings  in 
English  law,5  was  that  which  saw  the  origin  and  apparently 
the  greatest  native  6  influence  of  the  native  English  peniten- 


in  general,  the  prologues  to  their  laws  in  Liebermann’s  edition ;  Hodgkin, 
op.cit.  437-438,  336  et  seqq.,  299-305,  425  and  passim ;  Holdsworth,  op.  cit. 
II,  5-6;  Stubbs,  op.  cit.  I,  198  et  seqq.,  201,  179-180;  P.  and  M.  I,  21; 
and  the  earlier,  relatively  weak  kings  described  in  Chadwick,  Anglo- 
Saxon  Institutions  chap.  viii. 

^rom  Alfred  forward,  but  particularly  under  Edward  the  Elder, 
Athelstan,  Edgar  and  Cnut;  vide  Hodgkin,  op.  cit.,  passim. 

2 A  movement  that  gained  momentum  in  the  tenth  and  eleventh  cen¬ 
turies.  On  the  king’s  peace :  Pollock’s  excellent  essay  “  On  the  King’s 
Peace,”  in  his  Oxford  Lectures,  (London,  1890)  ;  his  remarks  ini 
Select  Essays  I,  101  et  seqq.;  P.  and  M.  I,  22-23. 

sAt  first  over  the  king’s  household,  retinue,  house,  “burh”  and 
officers :  Pollock,  locc.  cit. ;  P.  and  M.  I,  22  et  seqq. 

*From  the  Laws  of  Ethelbert,  in  the  beginning  of  the  seventh  century, 
up  to  and  including  those  of  Ine,  well  along  in  the  eighth.  For  the 
dates  of  the  various  laws,  etc.,  vide  Liebermann  op.  cit.  I,  “  Ein- 
leitung”  and  his  more  recent  vol.  iii ;  Brunner  Englische  Rechtsquellen ; 
an  essay  by  Maitland  on  “  Materials  for  the  Study  of  English  Law,” 
in  Select  Essays  I ;  also  the  introductory  chapter  to  the  more  recent 
edition  of  Pollock  and  Maitland,  Hist,  of  English  Law. 

5  Where  it  did  not  develop1  so  early  as  with  the  Frankish  kings ;  vide 
Jenks  and  Brunner,  opp.  citt.  passim. 

•I.  e.  in  England,  of  the  native  English  penitentials,  e.  g.  those  attri¬ 
buted  to  Theodore,  Bede  and  Egbert.  For  dates  and  textual  questions, 
supra,  chap.  iv. 


ENGLISH  PENITENTIAL  DISCIPLINE 


1 66 


[524 


tials.1  It  is  thus  evident,  so  far  as  the  king’s  peace  is 
concerned,2  that  the  time  of  strongest  development  of  the 
native  English  penitentials  came  when  their  assistance  in  dis¬ 
cipline  was  most  needed  to  supplement  the  weak  secular  laws. 


SECT.  7.  SUMMARY  OF  THE  WEAKNESSES  OF  THE  ANGLO- 

SAXON  LAWS 

From  the  discussion  in  the  preceding  sections,  it  is  now 
evident  that  the  Anglo-Saxon  Laws  were  extremely  weak 
in  the  detection  and  conviction  of  criminals  and  in  the  en¬ 
forcement  of  court  sentences.  The  specific  weaknesses  and 
defects  of  the  Anglo-Saxon  legal  system,  in  its  authority, 
courts,  procedure,  penalties  and  lack  of  adequate  machinery 
for  enforcement  all  tended  3  to  increase  crime  rather  than 
effectively  to  suppress  it.  Partially  to  fill  in  these  gaps  the 
church14  discipline  exercised  a  powerful  influence.  To  dis¬ 
cuss  this  influence,  particularly  in  its  definite  application 
through  the  Penitentials,  will  be  the  object  of  the  following 
chapter. 

*As  distinct  from  their  influence  on  the  Continent. 

3 On  the  judicial  weakness  of  the  king,  besides  the  references  cited 
supra,  vide  Stubbs,  Constitutional  History  I,  208;  Holdsworth  op.  cit. 
II,  2,  5-6;  Hodgkin  Hist,  of  England,  438-439;  P.  and  M.  I,  45,  note 
4;  Brunner  op.  cit.  II,  sections  65-66. 

‘Especially  in  the  fostering  of  perjury  and  of  class  discrimination  by 
the  compurgation  system;  in  private  warfare  by  vengeance,  self-help 
and  kin-help,  kin-solidarity,  blood- feud  and  the  weakness  of  the 
central  authority ;  in  the  fostering  of  collusion  in  ordeals ;  and  in 
various  other  respects.  For  details,  vide  supra. 

*Vide  supra,  sects.  3-4. 


CHAPTER  VI 


Provisions  of  the  Penitentials  Reinforcing  the 

Secular  Laws 

In  the  connection  previously  mentioned,  the  Penitentials 
'bore  an  important  relationship  to  the  secular  system'  of 
punishment  and  enforcement.  Numerous  provisions  are 
found  in  them  concerned,  directly  or  indirectly,  with  feud, 
compositions,  the  general  enforcement  of  law,  perjury,  and 
other  significant  phases  of  the  law.  As  will  be  demon¬ 
strated,  these  numerous  regulations  must  have  afforded 
material  assistance  to  the  secular  laws  in  socialising  the 
early  English  along  these  lines.  So  significant  are  these 
regulations,  as  regards  their  number  and  import,  that  each 
of  them  merits  distinct  treatment. 

SECT.  I.  THE  RULING  OF  THE  PENITENTIALS  AS 
REGARDS  FEUD 

Chapters  in  the  Penitentials'  possess  great  significance  for 
this  practice,1  then  so  prevalent  under  the  Anglo-Saxon 
Laws.  Friedberg,2  on  his  part,  considers  that  the  peniten¬ 
tial  codes  hindered  the  suppression  of  feud  by  allowing  pen¬ 
ances  for  carrying  on  feud  to  be  commuted  into  composi- 

1  Supra,  chap.  v. 

2  Friedberg,  E.,  Aus  den  deutschcn  Bussbuchern,  p.  4  and  n.  4;  also 
p.  38,  after  Wasserschleben  265— Ps.  Bede,  can.  xiii;  cf.  P.  Bede,  can. 
iv — one  year  and  in  the  following  two  years,  three  quarantines  and 
the  required  weekdays —  a  total  of  three  years,  misquoted  as  simply 
one  year  by  Friedberg:  vide  Wasserschleben  225.  *  Homicide  in 
vengeance”  was  that  committed  in  revenge  for  a  kinsman’s  murder. 

S25]  167 


ENGLISH  PENITENTIAL  DISCIPLINE 


1 68 


[526 


lions.  In  general  this  view  is  far  from  correct.  His  cita¬ 
tion  is  incorrect  and  not  typical,  as  it  represents  only  the 
lighter  group  in  the  penances  for  homicide  in  vengeance. 
Another  group  of  penances,  indeed,  provides  seven  or  ten 
years  which,  however,  may  be  mitigated  one-half  by  paying 
compensation  money  to  the  kin.1  Milder  penances  of  three 
years,  entire  or  in  part,  are  found  in  the  genuine  Penitential 
of  Bede  2  and  in  that  of  pseudo-Bede ;  in  numerous  Conti¬ 
nental  penitential^ ;  and,  with  penance  as  an  alternate,  in  that 
of  Theodore.3  When  these  penances  are  compared  with 
those  prescribed  for  wilful  homicide — usually  seven  or  ten 
years,  sometimes  more — one  must  admit  that  there  was 
some  slight  concession  to  the  popular  demand  for  vengeance, 
though  that  concession  was  far  from  being  so  great  or 
universal  as  Friedberg  represents. 

In  justice  to  the  penitential  system,  however,  one  must 
note  that,  in  penancing  homicide  in  vengeance  at  all,  it  was 
in  advance  of  the  secular  laws,  which  left  unpunished  ven¬ 
geance  taken  on  one  who  refused  to  give  justice.  In  the 
Penitential  of  pseudo-Egbert  (Book  ii,  canon  xviii),  there 
are  also  interesting  penances  of  excommunication  against 


1 P.  Th.,  can.  iv,  sect,  i:  “Si  quis  pro  ultione  propinqui  hominem 
occiderit,  peniteat  sicut  homicide  VII  vel  X  annos.  Si  tamen  reddere 
vult  propinquis  pecuniam  aestimationis,  levior  erit  poenitentia,  i.  e. 
dimidio  spatio.”  Vide  Wasserschleben  187;  Schmitz  I,  528  and  II, 
548;  cf.  sect.  2 — three  or  ten  years;  cf.  Cap.  Dach.,  clvi  and  P.  Mart., 
can.  li,  7.  For  Continental  penalties  of  three  years,  vide  Schmitz  II, 
534.  255,  219,  625,  183.  For  a  penalty  of  forty  days  and  seven  years, 
vide  Schmitz  II,  41 1;  cf.  Can.  Greg.,  can.  cxii,  in  Wasserschleben  173, 
after  P.  Th. 

2  Can.  iv  or  v,  3;  cf.  P.  Ps-Bede,  can.  xiii  in  Wasserschleben  265  and 
Schmitz  II,  690.  Of.  pseudo-Bede  I,  (Albers)  for  the  same  content, 
with  slightly  different  wording.  See  Albers’  article  in  AKKR.,  Bd.  81, 
(1901),  p.  404,  sect.  4. 

zCf.  supra.  For  further  details  on  degrees  of  homicide,  see  references 
on  the  Germanic  laws,  supra,  chap,  v  and  infra,  passim. 


REINFORCING  THE  SECULAR  LAWS 


527l 


169 


those  who  refused  to  make  peace  and  accept  justice  from 
those  who  had  wronged  them.1  Finally,  and  most  im¬ 
portant,  failure  to  pay  secular  compositions  was,  in  effect, 
penalised  by  the  additional  penance  prescribed  when  com¬ 
pensation  was  not  paid. 


SECT.  2.  PENITENTIAL  REQUIREMENT  OF  MONEY 
COMPOSITIONS 

Besides  these  efforts  to  restrain  feud,  the  Penitential s 
contained  several  important  provisions  requiring  the  pay¬ 
ment  of  compositions  in  fulfillment,  apparently,  of  secular 
law.  Sometimes  these  take  the  shape  of  compositions,  some¬ 
times  of  restitution. 

The  Penitential  of  Theodore  (canon  iii,  sect.  3)  as  alter¬ 
native  to  seven  years  of  penance,  allows  mitigation  as  the 
priest  may  judge,  “  according  as  it  may  be  compound  with 
those  whom  he  has  harmed  ” ;  hence  the  alternative  of  the 
full  seven  years  was  probably  then  used  as  a  penalty  for 

J0n  the  secular  laws,  supra,  chap.  v. 

The  passage  in  P.  Ps.-Egb.,  (Wasserschleben  328-329),  apparently 
refers  to  the  customs  of  swearing  an  “  oath  of  unfeud  ” ;  “  Si  homo 
quis  adeo  furiosus  et  duro  corde  sit,  ut  nullum  saeculare  jus  et  pacem 
admittere  velit  cum  eo,  qui  in  eum  deliquerit,  excommunicetur.”  Cf. 
can.  xxix:  “  Homo  qui  propter  simultatem  aliquam  certat  cum  pro¬ 
ximo  suo,  et  adeo  durus  sit,  ut  juramenta  praestet,  se  nullam  pacem! 
admittere  velle  cum  eo,  qui  in  eum  deliquerit,  excommunicetur.  Si 
autem  respiscere  velit,  et  pacem  admittere,  I  annum  jejunet  propter 
juramentum,  et  III  quadragesimas  in  pane  et  aqua,  et  reliquum  anni 
jejunet,  prout  confessarius  ejus  ei  praescripserit.” 

For  the  influence  of  the  Church  in  combatting  the  blood'-feud,  stif¬ 
fening  penalties,  cf.,  also,  Liebermann,  Gesetze  II,  s.  v.  “  Kirchen- 
staatsrecht,”  nos.  9,  9a,  10,  15,  et  seqq.  and  the  formulae  of  excom¬ 
munication  in  ibid.,  I.  On  the  Church’s  aid  in  enforcing  the  payment 
of  wergild,  see,  also,  Makower  op.  cit,,  391.  Those  who  delayed  to 
appear  before  a  secular  court,  when  summoned,  were  excommunicated; 
vide  P.  and  M.  I,  461,  cited  by  Liebermann,  op.  cit.  II,  v.  “  Exkom- 
munikation,”  no.  11.  Excommunication  was  also  used  against  great 
criminals ;  supra,  chap,  iii  and  Liebermann,  op.  cit.  II,  “  Exkommunika- 
tion.”  1 


170 


ENGLISH  PENITENTIAL  DISCIPLINE 


[52& 

refusal  to  compound.1  This  is  repeated  in  the  Penitential 
of  pseudo-Cummean  (canon  iv,  sect.  5),  and  possibly  implied 
in  that  of  Egbert  (canon  x.  sect.  5)  and  in  the  Canones 
Gregorii 2  (canon  xciv).  The  Capitula  Dacheriana  (canon 
cxxviii)  provides  the  penalty  of  servitude  for  failure  to 
pay  compensations  to  a  bishop  or  abbot  for  crimes  com¬ 
mitted  against  them.3  According  to  the  Penitential  of 
Theodore  (canon  iv,  sect.  1 )  the  payment  of  the  wergild  to 
the  kin  will  mitigate  the  penance  for  homicide  in  vengeance 
by  one-half.4  This  judgment  may  have  influenced  canon  clvi 
of  the  Capitula  Dacheriana,  according  to  Wasserschleben.* 
The  Penitential  of  Vinnian  (canon  xxiii),  concerning] 
homicide  by  a  cleric,  requires,  besides  ten  years  of  penance, 
the  satisfying  of  the  friends  of  the  slain  and  the  rendering 
of  service  to  his  father  and  mother.*  Canon  ix,  concern- 

1Wasserschleben  187,  Schmitz  II,  548.  These  apply  to  repeated  theft 
of  objects  from  secular  owners;  for  the  theft  of  consecrated  objects, 
etc.,  cf.  sect.  2,  and  infra,  s.  v.  “Restitution.”  The  text  of  sect.  3; 
“  Qui  saepe  furtum  fecerit,  VII  annorum  poenitentia  ejus  est,  vel 
quomodo  sacerdos  judicaverit,  i.  e.  juxta  quod  componi  possit  quibus 
nocuit;  et  qui  furtum  faciebat,  poenitentia  ductus  semper  debet  re- 
conciliare  ei,  quern  offendebat  et  restituere  juxta  quod  ei  nocuit  et 
multum  breviabit  poenitentiam  ejus.  Si  vero  noluerit  aut  non  potest, 
constitutum  tempus  poeniteat  per  omnia.” 

‘Wasserschleben  476,  Schmitz  II,  620,  Wasserschleben  241  cf  seq ,  171, 
simply  repeat  “aut  quomodo  sacerdos  judicavit.” 

’Wasserschleben  157:  “  Episcopus  et  abbas  hominen  sceleratum  servum 
possunt  habere,  si  pretium  redimendi  non  habet  ” ;  cf.  similar  penalty 
in  P.  Th.  can  iii,  sect.  1,  for  seducing  a  monk  from,  a  monastery,  Was¬ 
serschleben  187,  and  references  there  given. 

*  Wasserschleben  187,  Schmitz  II,  548. 

‘Wasserschleben  159,  the  penance  being  given  as  four  years.  As  re¬ 
gards  the  above  penance  in  P.  Th.  can.  iv,  sect.  1,  the  wergild  is  appar¬ 
ently  meant  by  “  si  tamen  reddere  vult  propinquis  pecuniam  estimationis,” 
in  the  reference  supra. 

‘Wasserschleben  113:  “  Satisfaciat  amicis  ejus  quern  occiderat,  et 
vicem  pietatis  et  obediente  reddat  patri  aut  matris  ejus,  eo  adhuc  in 
corpore  sunt  et  dicat :  ‘  Ecce  ego  pro  filio  vestro  quecunque  dixeritis 
mihi  faciam”;  under  pain  of  anathema.  Cf.  P.  Columb.,  B.,  1,  A,  3. 


REINFORCING  THE  SECULAR  LAWS 


171 


529\ 

ing  the  striking  of  a  layman,  prescribes  the  giving  of  money 
(compensation)  to  the  person  struck,  according  to  the  judg¬ 
ment  of  the  priest  or  of  some  judge.  This  is  apparently 
repeated  in  part  by  the  Penitential  of  Bede  (canon  iv  or 
iii  or  ii,  sect.  2),  with  slightly  different  wording.1  In  sec¬ 
tion  9  of  the  preceding,  concerning  the  deforming  or  crip¬ 
pling  (temporarily?)  of  a  man  in  strife  (brawl?),  the  of¬ 
fender  is  to  pay  compensation  and  for  medical  treatment,  do 
the  work  of  the  injured  and  perform  penance;  while  the 
penalty  for  refusal  is  increased  penance.  The  whole  may 
be  compared  with  similar  provisions  in  the  Confessional  of 
pseudo-Egbert 2  (canon  xxii). 

1  P.  Finn.,  can.  ix,  (Wasserschleben  no)  :  “  Si  autem  laicus  fuerit,  XL 
dierum  peniteat  et  det  pecuniam  aliquam  qui  percutit,  quantum  arbitra- 
tus  fuerit  sacerdos  aut  justus  quisquam.  Clericus  autem  pecuniam 
dare  non  debet  aut  illi  aut  ille.” 

P.  Bede,  loc.  cit.,  (Wasserschleben  225)  :  “Quod  et  si  vulneravit,  dies 
XL,  si  clericus  annum  totum,  sed  et  pecuniam  pro  modo  vulneris  cui 
inflixit  tributo.”  Cf.  P.  Columb.,  B.,  can.  xxi.  P.  Mart.,  can.  li,  10, 
(Wasserschleben  293),  requires  that,  after  confession,  the  bishop  or 
priest  shall  exhort  composition,  under  pain  of  penance,  for  homicide  and 
theft.  As  regards  the  reference  from  the  Penitential  of  Bede,  supra, 
note  the  resemblance  to  the  Germanic  tariffs  for  wounds  according  to 
degree. 

For  the  insistence  of  the  Church  upon  obedience  to  the  secular  courts, 
see,  also,  Liebermann,  Gesetse  II,  s.  v.  “  Kir chenstaatsr edit.” 

The  canon  cited  from  Bede's  code  is  numbered  differently  in  the  dif¬ 
ferent  editions. 

1  Wasserschleben  225,  cf.  309-310;  Schmitz  II,  loc.  cit.  Some  secular 
laws  require  that  the  misdoer  must  pay  for  a  physician’s  services  for 
one  whom  he  has  wounded.  Vide  Ethb.,  capp.  62-63;  Alf.,  Introd.  and' 
77;  some  statutes  of  the  twelfth  century;  Liebermann,  Gesetse  II, 
j.  v.  "  Ar st,”  after  EHR.,  (1900),  498. 

The  provision  in  Conf.  Ps.  Egb.,  can.  xxii,  refers  directly  to  injuring 
a  man’s  genital  organs  or  wounding  him  in  the  face;  and  uses  the 
phrase  “  mercede  medio  solvat”,  which  may  refer  to  the  disputed 
“medume  leodgeld”  of  Ethb.  21,  or  a  similar  later  expression.  For 
meanings  of  the  latter  phrase,  cf.  Chadwick,  Anglo-Saxon  Institutions 
107-108  and  Seebohm,  Tribal  Custom  457.  It  is  possible,  however,  that 
the  above  passage  in  the  Confessional  may  be  Continental  in  origin ; 
cf.  supra,  chap,  iv,  on  authorship.  This  penitential  has  a  following  pro¬ 
vision  requiring  payment  of  composition  to  the  kin  in  case  of  homicide. 


172 


ENGLISH  PENITENTIAL  DISCIPLINE 


[530 

It  may  be  objected  that,  in  view  of  the  secret  nature  of, 
the  confessional,  the  provisions  mentioned  were  intended  to 
apply  merely  to  crimes  still  secret.  Yet,  on  the  other  hand, 
we  have  seen  that  penance  was  also  definitely  required  by 
secular  authority  for  publicly  known  crimes,  in  judging 
which  there  was  something  approaching  “concurrent  juris¬ 
diction  Hence,  one  may  rightly  conclude  that  the  peni¬ 
tential  provisions  requiring  payment  of  secular  compositions 
applied  equally  to  secret  and  publicly  known  crimes,  even  if 
the  actual  imposition  of  a  definite  penance  was  secret.1  In 
either  case  the  ecclesiastical  requirement  of  the  payment  of 
compositions  must  have  materially  strengthened  the  secular 
enforcement  of  penalties,  then  in  great  need  of  such  rein¬ 
forcement. 

Closely  resembling  the  demand  for  payment  of  secular 
compositions  were  the  provisions  requiring  restitution  of 
property  stolen  or  fraudulently  obtained  or  withheld.  Of 
these  provisions  there  are  many  in  the  Penitentials,  cor¬ 
responding  to  similar  provisions  in  the  secular  law,  both 
Roman  and  Germanic,2  with  repeated  distinctions  between 
the  amount  of  restitution  required  in  the  case  of  secular 
and  of  ecclesiastical  property.  The  Penitential  of  Theodore 
(canon  iii,  sect.  3)  demands  restitution  of  stolen  (secular) 
property  under  penalty  of  heavier  penance;  while  section  2 
requires  that  two-fold  restitution  be  made  for  stolen  secular 
property.3  This  provision  is  repeated  in  the  Penitential  of 

1The  attacks  of  many  historians  upon  the  allowing  of  compositions  by 
the  Penitentials  have  failed  to  allow  for  this  element;  cf.  supra,  chaps, 
ii  and  iii,  under  commutations. 

For  the  influence  of  ecclesiastical  canons  upon  English  law  and  con¬ 
science  in  the  pre-Norman  periods  vide  Liebermann,  oip.  cit.  II,  s.  v. 
“  Kirchenstaatsrecht,”  nos.  12,  13a,  14a,  17  and  s.  v.  “Jurist.” 

3 The  parallel  passages  follow,  in  the  notes. 

3  Wasserschleben  187;  Schmitz  II,  548.  'Can.  iii,  sect.  3,  concerning  fre- 
quet  theft :  “ .  .  .  Et  qui  furtum  faciebat,  poenitentia  dictus  semper  debet 
reconcilari  ei,  quern  offendebat,  et  restituere  juxta  quod  ei  nocuerit  et 


REINFORCING  THE  SECULAR  LAWS 


531] 


173 


pseudo-Cummean  1  (canon  iv,  sect.  5).  Simple  restitution 
and  penance  was  demanded  by  the  Penitential  of  pseudo- 
Egbert,  or  as  the  priest  shall  judge.2  For  technical  sac¬ 
rilege,  or  theft  or  robbery  of  ecclesiastical  property  or  of 
sacred  objects,  the  Penitential  of  Theodore  prescribes  four¬ 
fold  restitution.3  This  provision  is  repeated  by  the  Canones 
Gregorii  (canon  clxvi)  and  by  the  Capitula  Dacheriam 
(canon  lxxxiii),4  as  well  as  in  several  Continental  peniten- 
tials;  also  in  the  pseudo-Bede  (“Prologue”,  canon  xx),& 
and,  possibly,  in  the  penitentials  of  Vinnian  6  and  of  David.7 


multum  breviabit  poenitentiam.  ejus.  /SI  vero  noluerit  aut  non  potest, 
constitutum  tempus  (seven  years)  poeniteat  per  omnia.”  The  paren¬ 
thesis  is  ours.  Sect.  2:  “.  .  .  .  Pecunia  ....  furata  .  .  .  sive  rapta 
. .  .  reddatur  .  .  .  secularibus  dupliciter.”  Cf.Ethb.  2-3;  contra,  cans.  1-11. 

1  Wasserschleben  476;  Schmitz  II,  620.  Cf.  Coll.  XXXV  Capp.  can. 
xii,  2. 

The  earlier  Kentish  secular  law,  Ethb.  2-3  did  not  definitely  set  the 
multiple  for  restitution  of  secular  property.  Later  laws  provide  two-fold 
restitution  of  secular  property:  III  Ethr.  4;  II  Cn.  30,  3;  cf.  Ine  43 
and  Brunner,  op.  cit.  II,  643.  But  Ethb.  9  has  three-fold  restitution 
for  theft  from  a  freeman ;  Ethb.  28  has  the  same  penalty  for  taking 
property  from  a  dwelling;  and  Ethb.  4  prescribes  nine-fold  restitution 
for  theft  from  the  king. 

iP.  Ps.-Bede,  can  xxxi,  “  furtum  capitale  ....  I  annum  .  .  .  .  et 
precium  reddat,”  (the  variant  has  additional  penance  for  non-restitu¬ 
tion,  Wasserschleben  272,  n.  6)  ;  cf.  Schmitz  II,  695,  not  in  Albers. 
This  canon  apparently  combines  Egb.,  x,  3  and  Bede,  viii,  4,  accord¬ 
ing  to  Wasserschleben.  Cf.  P.  Columb.  B,  can.  xix.  P.  Ps.  Egb.,  Lib. 
ii,  can.  xxv,  petty  theft :  “Si  ...  .  rem  mediocrem  furatus  sit,  reddat 
furtum  ei,  cujus  proprium  erat  ”  and  one  year  on  bread  and  water; 
“et  si  non  habeat  unde  furtum  reddat  ....  Ill  annos  i.  p.  e.  a.”  Was¬ 
serschleben  328,  after  Thorpe. 

‘Wasserschleben  187;  Schmitz  II,  547,  I,  527. 

4  “  Pecunia  ecclesiae  furta  sive  rapta  reddatur  quadruplum,”  Was¬ 
serschleben  178,  152;  cf.  P.  Ps.-Cumm.,  iv,  1,  Coll.  XXXV  Capp.  xii,  2. 

5  Schmitz  II,  682,  with  three  years’  penance. 

6Can.  xxv,  Wasserschleben,  113;  Schmitz  I,  505. 

7 Can.  xvi,  Wasserschleben  102;  Schmitz  I,  493,— regarding  perjury  in 
'church. 


ENGLISH  PENITENTIAL  DISCIPLINE 


174 


[532 


A  provision  for  simple  restitution  with  seven  years’  penance 
is  found  in  pseudo- Egbert  (Book  iv,  canon  xxiv).1 


SECT.  3.  PENANCES  FOR  PERJURY  IN  THE  PENITENTIALS 

The  penitential  codes  undoubtedly  exercised  a  powerful 
influence  towards  diminishing  the  great  amount  of  perjury 
that,  as  we  have  seen,2  was  so  prevalent  under  the  weak 
Anglo-Saxon  laws.  This  influence  was  extensive  not  only 
because  jurisdiction  over  perjury  was  vested  in  the  discipline 
of  the  Church 3  but,  in  particular,  because  of  the  large 
number  and  great  significance  of  provisions  penancing  that 
crime  in  the  Penitentials. 

Perjury  is  dealt  with  very  severely  in  numerous  provisions 
of  these  codes.  Though  they  do  not  definitely  mention  per¬ 
jury  committed  in  compurgation,  yet  the  general  descrip¬ 
tions  of  the  crime  in  the  Penitentials  indicate  that  such  per¬ 
jury  was  included,  as  well  as  other  kinds — e.g.  that  in  the 
oath  of  allegiance  sworn  to  a  lord  or  to  the  king.  Pen¬ 
ances  are  provided  for  various  degrees  of  perjury:  general 
perjury;  suborning;  the  penance  of  those  suborned;  per- 
ury  from  cupidity,  from  hate,  from  fear  of  death,  or  as  a 
personal  or  family  favor;  conscious  and  unconscious  per¬ 
jury;  that  committed  under  compulsion;  and  finally,  perjury 
committed  on  objects  not  sacred  and  that  on  sacred  objects 
and  persons.  Provisions  are  found  in  the  penitentials 
ascribed  to  Theodore,  to  Bede  and  to  Egbert ;  in  the  so-called 
Capitula  D  acker  iana ;  the  Pseudo- Bede  II;  the  so-called 
Canones  Gregorii ;  the  Poenitentiale  Martenianum;  the  Con- 

1  Wasserschleben  336 — breaking  into  a  church  for  the  sake  of  theft. 

Various  provisions  of  the  Laws  of  Ethelbert  prescribe  even  severer 
penalties  of  restitution,  varying  according  to  the  rank  of  the  eccle¬ 
siastic  injured,  from  eleven-fold  to  three-fold;  vide  Ethb.  1. 

1 Vide  supra,  chap.  v. 

*  Ibid.  Cf.  Liebermann  op.  cit.  II,  s.  v.  "  Meineid,”  no.  10. 


REINFORCING  THE  SECULAR  LAWS 


533] 


175 


fessional  of  pseudo-Egbert ;  the  Penitential  of  pseudo- 
Theodore;  and  that  of  pseudo-Egbert.1 

Book  I  of  the  Penitential  of  Theodore  2  has  a  canon  of 
five  sections  which  deal  with  various  forms  of  perjury. 
Canon  vi,  sect.  5  penalizes  perjury  in  a  church  with  eleven 
years.3  Perjury  under  compulsion  is  to  be  expiated  through 
three  quarantines.4  Greek  custom  is  quoted  against  a  pen¬ 
ance  for  perjury  on  the  hand  of  a  layman;  but,  if  committed 
on  an  unconsecrated  cross,  the  penance  is  one  year.5 *  For 
perjury  on  the  hand  of  a  bishop,  priest  or  deacon,  or  on  an 
altar  or  a  consecrated  cross,  the  penance  is  three  years;  ® 
and  a  similar  period  is  provided  for  simple  perjury.7 

The  Penitential  of  Bede  provided  comparatively  detailed 
penalties.  Canon  iv  or  v,  sects.  1-4  inclusive  deals  with 
perjury  under  compulsion;  voluntary  commission  on  the 
hand  of  a  bishop  or  priest,  or  on  an  altar  or  consecrated 


1Definite  passages  will  be  given  infra,  passim.  On  authorship,  dates, 
etc.,  of  the  Penitentials,  supra,  chaps,  i  and  iv. 

•The  work  of  the  “ Discipulus  Umbrensium,”  of  Schmitz,  Wasser- 
schleben,  (with  variants),  and  H.  and  S.,  can.  vi. 

8Schmitz  I,  530,  II,  550;  Wasserschleben  190.  Cf.  P.  Ps.-Cumm.  v, 
sect.  2  in  Schmitz  I,  628;  Can.  Greg.,  clxxxviii;  P.  Egb.  vi,  i;  P.  Mart., 
liii,  1. 

8  In  sect.  2,  Schmitz  I,  II,  and  Wasserschleben  locc.  citt.  Cf.  P.  Bede, 
can.  iv,  sect.  1,  Schmitz  I,  560,  adds  “  et  legitimas  ferias,”  and  has 
slightly  different  wording;  in  Wasserschleben  225,  as  can.  v,  1.  Also 
cf.  Egb.  vi,  4,  (alternate),  and  P.  Mart.,  liii,  sect.  2,  Ps-Cumm.  v.  sect.  2. 

5  Vide  sect.  3,  locc.  citt.  Can.  Greg,  cxv;  Bede,  can.  iv,  sect.  2,  or 
can.  v,  sect.  2;  Egb.  vi,  sect.  7;  P.  Mart,  liii,  sect.  4.  This  does  not 
refer  to  any  known  oath  of  compurgation  or  witness,  and  may  have 
referred  to  an  oath  of  allegiance,  without  consecrated  safeguard. 

Vide  sect.  4,  locc.  citt.  and  P.  Ps-Cumm.  v,  sect.  3,  P.  Mart,  liii, 
sect.  3. 

tVide  sect.  4,  locc.  citt.  Cf.  Can.  Greg.,  cxv,  Bede,  can.  v,  2,  or  iv, 
sect.  2;  Egb.  vi,  sect.  2;  P.  Mart,  liii,  sect.  4. 

7  Vide  sect.  5,  locc.  citt.  Cf.  Cap.  Dach.,  clii;  Egb.,  vi,  sect.  5. 


ENGLISH  PENITENTIAL  DISCIPLINE 


176 


[534 


cross;  unconscious  perjury;  and  false  witness.1  Uncon¬ 
scious  perjury  is  to  be  expiated  by  one  year,  and  false  wit¬ 
ness  according  to  the  manner  of  guilt.2 

The  Penitential  of  Egbert  ’has  several  'canons  which  deal 
incidentally  or  wholly  with  perjury.  Mentioned  as  a  capital 
sin  in  canon  i,  it  is  penalised  as  follows : 3  a  layman  must 
expiate  with  four  years ;  a  clerk,  with  five ;  a  subdeacon,  with 
six;  a  deacon,  with  seven;  a  priest,  with  ten;  and  a  bishop, 
with  twelve,  if  habitual.  Canon  ii,  includes  false  witness 
among  the  lesser  sins,  with  penances  for  the  laity  of  one 
year;  for  a  clerk,  five;  for  a  subdeacon,  three;  for  a  deacon, 
four;  for  a  priest,  five;  for  a  bishop,  six  years.  Canon  vi 
has  seven  sections  giving  penances  for  perjury.4  If  it  had 
been  done  in  a  church  or  on  the  gospel  or  on  relics,  it  was 
penanced  by  seven  or  eleven  years; 5  if  on  the  hand  of  a 
bishop,  priest  or  deacon,  or  on  a  consecrated  cross — by  one 
year  or  seven  or  three.6  For  perjury  under  compulsion,  the 
penance  was  for  three  quarantines  or  three  years,7  of  which 
one  was  to  be  on  bread  and  water;8  if  consciously — one 
year  or  three  quarantines  or  forty  days.9  For  simple  per- 

1Vide  Wasserschleben  225,  as  can.  v,  sect,  i;  Schmitz  I,  560,  as  can. 
iv,  sect.  1 ;  Schmitz  II,  657,  as  can.  iii,  sects.  1  and  2,  repeat  P.  Th.,  vi, 

sect.  2  et  seq. 

3  Vide  sect.  4,  Schmitz  I,  560  and  II,  658;  Wasserschleben  226.  Cf. 
P.  Ps.-Cumm.,  can.  v,  sect.  1. 

3  Vide  Schmitz  I,  575;  II,  663;  Wasserschleben  233. 

4 Wasserschleben  234;  Schmitz  II,  663. 

5  Can.  vi,  sect.  1,  in  Wasserschleben  238.  Schmitz  I,  579  and  II,  666 
have  a  variant  of  seven  or  ten  years.  Eleven  years  come  from  P.  Th. 
can.  vi,  sect.  1. 


6  Sect.  2  in  Schmitz  I,  579  and  II,  666;  Wasserschleben  238.  For  three 
years,  cf.  P.  Th.  can.  vi,  sect.  1. 

7  Sect.  4,  in  1  occ.  citt.  One  year  is  from  P.  Th.,  loc.  cit. 

8  For  three  quarantines,  vide  P.  Th.,  loc.  cit. 

9  Vide  sect.  3;  cf.  Syn  Viet.  can.  v. 


535]  reinforcing  the  secular  laws  1?7 

£y'  ,the  Penance  was  three  years,  after  the  Penitential  of 
heodore;  if  wilfully,  after  suspicion,  two  years  2 

In  the  several  members  of  the  Theodore-cyde,  penances 
for  perjury  are  found  in  the  Capihda  Dacheriana,  the 
Poemtenhale  Martenianum,  the  Canones  Gregorii,  and  the 
icta  Theodon,  besides  references  in  the  Pseudo-Theodore 
and  in  others  of  Frankish  origin  which  require  separate 
treatment.  In  the  Capihda  Dacheriana,  only  one  provision 
IS  ound  (canon  clu)  on  simple  perjury,  after  the  Peni¬ 
tent, al  of  Theodore  (canon  vi,  sect.  5). 3  The  Poenitentiale 
Martenianum*  (canon  liii)  has  five  full  sections  on  per¬ 
jury,  partly  from  the  so-called  “  Synod  of  Patrick  ”  and  the 
ibernensis.  As  sect.  5  is  essentially  a  homiletic  direction, 
without  specific  penance,  the  canon  rests  upon  the  Peniten¬ 
tial  of  Theodore.  Canon  liv,  “  De  contradictions  ”  is  based 
upon  the  so-called  “  Synod  of  Patrick  ”  and  the  Penitential 
3f  Egbert.  Together  with  sections  from  the  Penitential  of 
erseburg  it  also  contains  penances  for  perjury.4  The 
:hief  penances  imposed  here  are  for  three  or  six  years  and 
wo  vide  that  the  perjurer  shall  never  be  allowed  to  take  an 
Mfh.  The  Canones  Gregorii  (canon  clxxxviii)  repeat  the 
Penitential  of  Theodore  (canon  vi,  sect.  1)  on  perjury  in  a 
3  urch.  Canon  cxv  of  the  former  is  partly  from  sect.  3, 

lP'  E^h-  can-  vi,  sect.  5;  P.  Th.  can.  vi,  sect.  5. 

* Vide  sect-  6-  Cf.  Syn.  Viet.  can.  v;  P.  Th.  can.  vi,  3. 

Wasserschleben  158 — three  years. 


4  Wasserschleben  294  after  Martene;  but  see  ch.  iv,  supra,  for  author- 

P  ,  1  and  2 fr°m  P ■  Th *'  Can-  vi’  x-2>-  sects-  3-4  are  from 

,  a  r?  .cfn>  xxln-  But  see  Wasserschleben,  loc.  cit.  and  supra 

T  *’  on  ons'm-  Cf.  Coll.  Can.  Hibem.,  Lib.  xxxiv,  can.  ii,  cited  by 
asserschleben,  loc.  cit. 


^cCCt- 1  is  from  Syn-  Patr-  dt.  and  from  P.  Egb.,  can.  vi,  S-three 
I  ",.  3-  from  P.  Mersebg.  A,  (Wasserschleben),  cans,  v,  vi, 

'i  mg  six  years,  of  which  three  are  to  be  penanced  in  entirety,  and 
e  never  be  allowed  to  take  an  oath.  For  compulsory  or  uncon¬ 
us  perjury— three  years,  one  of  them  entirely. 


ENGLISH  PENITENTIAL  DISCIPLINE 


178 


[536 


concerning  perjury  on  the  hand  of  a  layman;  and  partly 
from  sect.  4,  regarding  that  committed  on  the  hand  of  a 
bishop,  priest,  or  deacon,  or  on  an  altar.1 

Among  the  works  wrongly  ascribed  to  Egbert  of  York, 
the  Confessional  of  pseudo-Egbert  and  the  Penitential  of 
pseudo-Egbert  each  have  several  canons  providing  penances 
for  perjury.2  The  Confessional  of  pseudo-Egbert  (canon 
xxxiv)  prescribes  a  four  years’  fast  for  commission  in  a 
church,  or  on  the  gospel  or  relics.  But  if  it  has  been  on 
the  hand  of  a  bishop  or  priest  or  deacon,  or  on  a  consecrated 
cross — one  year.  If  the  perjurer  has  been  suborned  un¬ 
consciously,  he  shall  do  penance  for  three  required  fasts;  if 
wilfully,  after  suspicion — for  two  or  three  years.  If  he  has 
committed  perjury  on  the  hand  of  a  layman,  there  is  no 
penance.3 

The  Penitential  of  pseudo-Egbert  (Book  ii,  canon  xxiv) 
prescribes  four  years’  penance  for  a  layman;  for  a  clerk, 
five  years;  a  subdeacon,  six;  a  deacon,  seven;  a  priest,  ten; 
and  a  bishop,  twelve.  If  the  sin  lias  been  through  com¬ 
pulsion  or  unconsciously,  the  penance  is  three  years,  of 
which  one  must  be  on  bread  and  water  in  the  confessor’s 
discretion;  and  the  penitent  shall  free  a  slave,  if  able  to  do 
so.  If  perjury  has  been  committed  from  fear  or  for  favor 
or  money,  let  the  perjurer  give  his  possessions  to  the  poor 

1  Wasserschleben  180 — eleven  years;  fo r  compulsory  perjury — three 
quarantines.  Can.  cxv  (Wasserschleben  173)  provides  three  years.  Cf. 
Can  Greg.,  can.  clxxxviii  and  Dicta  Th.,  can.  clxxxviii,  in  Schmitz  II, 
541. 

2  For  origin  and  probable  influence,  supra,  chap.  iv. 

8  Wasserschleben  314,  after  Thorpe,  Ancient  Laws,  etc.  Cf.  P.  Ps. 
Cumin,  can.  v,  sects.  2-3,  7-8;  P.  Th.  can.  vi,  sect.  3,  with  slight  verbal 
variations.  Note  the  milder  penance  for  perjury  committed  on  the 
hand  of  a  layman.  The  penance  which  has  been  described  as  that 
for  perjury  committed  wilfully  after  suspicion  has  a  peculiar  wording: 
“  Qui  sua  sponte  perjuraverit,  et  postea  scit,  quod  perjurus  est,  III 
annos  vel  II  jejunet.” 


537]  reinforcing  the  secular  laws  J7g 

and  serve  God  for  life  in  a  monastery.  Book  iv,  canon 
clxviu  repeats  the  penances  of  the  Penitential  of  Theodore  1 
or  perjury  on  the  hands  of  a  bishop,  priest  or  deacon,  or  on 
an  altar  or  consecrated  cross; 2  and  for  simple  perjury  or 
that  committed  on  an  unconsecrated  cross.  For  false  wit¬ 
ness,  book  li,  canon  xxvi  prescribes  excommunication  until 

penance  has  been  performed  3  according-  to  the  direction  of 
the  confessor. 

In  the  pseudo-Theodore,4  canon  ix  provides  very  fully  for 
various  degrees  of  perjury.  If  committed  wilfully  or  con¬ 
sciously,  it  is  to  be  expiated  according  to  rank :  f  or  a  layman, 
the  penance  is  four  years;  for  a  clerk,  five;  for  a  subdeacon, ’ 
six;  for  a  deacon  or  a  monk,  seven;  for  a  priest,  ten;  for  a 
bishop,5  twelve.  If  committed  in  a  church  or  on  the  gospel 
or  relics,  the  period  is  eleven  years;  if  on  the  hand  of  a 
bishop  or  priest  or  deacon,  or  an  altar  or  consecrated  °j 
cros's^-— three  years,  as.  in  the  Penitential  of  Theodore.  For 
conscious  perjury  under  compulsion  by  one’s  lord,  the  ex¬ 
piation  is  to  be  for  three  quarantines  and  the  lawful  week- 
lays;  for  suborning— seven  years;  if  suborned  ignorantly— 
>ne  year.  For  wilful  perjury  after  suspicion,  two  years  are 
'equired;  for  perjury  under  compulsion--three  quarantines 
or  three  years,  of  which  one  must  be  on  bread  and  water.  If 
>erjury  has  been  committed  from  greed,  the  penitent  must 
;e  1  a]I  and  £ive  to  the  poor  and  enter  a  monastery  for  life, 
w  undergo  ten  years’  penance.  If  it  has  been  through 
error  or  in  peril  of  death,  the  requirement  is  three  years 
>r  exile  unarmed,  of  which  one  might  be  on  bread  and 

Wasserschleben  343.  On  origin,  supra,  chap.  iv. 

1  Ride  locc.  citt.,  supra. 

‘See  the  preceding  notes  for  references. 

4  The  text  followed  is  that  of  Wasserschleben  and  Schmitz. 

Ef.  Ps.  Cutnm.,  v,  1. 

'Sect.  2,  after  P.  Th.,  vi,  1,  3,  4.  Cf.  Ps.  Bede  II,  xviii,  2. 


!8o  ENGLISH  PENITENTIAL  DISCIPLINE  [538 

water  and  two  without  flesh  and  wine;  besides  releasing  a 
slave  or  giving  alms  as  the  penitent  shall  be  able  1 — a  total 
of  five  years’  penance  before  communion.2 

In  canon  vii,  sect.  1  of  the  same  penitential,  false  witness 
is  penalised  by  excommunication  until  completion  of  penance. 
In  section  2,  seven  years’  3  penance  is  provided  for  perjury 
from  greed,  of  which  three  must  be  on  bread  and  water ; 
while,  for  consent  to  false  witness,  five  years  are  provided, 
of  which  one  must  be  on  bread  and  water.  Section  3  pro¬ 
vides  a  penance  of  seven  years  for  perjury  committed  from 
hate,  of  which  three  must  be  on  bread  and  water.  For 
favoring  a  kinsman  by  perjury,'4  section  4  has  the  same  pen¬ 
ance;  but  section  5  provides  that,  if  it  has  been  committed 
unconsciously,5  one  must  confess  to  the  injured  person  and 
keep  silence  for  an  hour  or  do  penance  with  twelve  psalms. 
Other  following  sections  apparently  refer  to  lying. 

The  Penitentials  of  pseudo-Bede  6  I  and  II  have  several 
provisions  against  perjury  and  false  witness,  the  number 
and  wording  varying  in  the  different  penitentials  or  versions 
used  by  the  principal  editors.  In  Albers’  version,  called  by 
us  “  Penitential  I,”  the  sections  usually  are  not  numbered 
but,  in  the  versions  of  Wasserschleben  and  of  Schmitz — 
“  Penitential  II  ” — they  are  numbered.  In  Wasserschleben’s 
version,  in  which  the  latter  capitida  are  often  Frankish, 
canons  xviii,  xxvi,  xxxiii  and  xlix  prescribe  detailed  pen¬ 
ances  either  for  perjury  or  for  false  witness. 

‘Sects.  3-9,  after  P.  Bede,  v  or  iv,  1;  Ps.  Cumin.,  v,  6-8;  Ps.  Bede, 
xviii,  2,  xxxix,  2.  Cf.  P.  Vinn.,  xxii;  P.  Coltunb.  B..  v;  Ps.  Cumin., 
6-8;  and  P.  Rom.,  passim. 

*Cf.  Wasserschleben  593,  note  2. 

*  Wasserschleben  590.  Cf.  P.  Ps.  Cumm.  v,  10. 

4  “  Placet  primum  proximo  suo”,  in  Wasserschleben  loc.  cit. 

5“  Si  quis  mendacium  dixerit  per  ignorantiam  ”  may  refer  simply  to 
lying.  Similar  remarks  apply  to  sects.  5-7.  For  provisions  resembling 
the  above — P.  Eccl.  Germ,  and  others  infra. 

®See  discussion,  supra,  chap.  iv. 


539]  REINFORCING  THE  SECULAR  LAWS  181 

The  content  of  canon  xviii  is  found  in  all  three  versions, 
with  some  variations,  as  well  as.  that  of  canon  xxvi.  But 
Schmitz’s  edition  has  verbal  variants  for  both,  and  Albers 
omits  any  canons  like  xxvii,  xxxiii,  and  xl  of  Wasserschle- 
ben’s  edition,  and  also  presents  variants  to  the  readings  of 
canons  xviii  and  xxvi.1  Canon  xviii  prescribes,  for  perjury 
under  compulsion,  three  quarantines  and  the  lawful  week 
days  ;  2  provides  penances  similar  to  those  in  .the  Peniten- 
tials  of  Theodore  and  of  Egbert  for  wilful  perjury  and 
for  that  committed  on  an  unconsecrated  cross;  or  on  the 
hand  of  a  bishop,  priest  or  layman;  or  on  an  altar.  For  un¬ 
conscious  perjury,  however,  it  requires  one  year.3 

Section  2  provides,  for  perjury  in  a  church  or  on  the 
Gospel  or  relics,  seven  or  eleven  years;  4  if  it  has  been  com¬ 
mitted  on  an  unconsecrated  cross,  one  year  or  seven  months  f 
if  one  has  been  unconsciously  suborned,  one  year  or  three 
quarantines  or  forty  days;  6  if  under  compulsion,  three 
quarantines  or  three  years,  of  which  one  must  be  on  bread 
and  water.7  Simple  perjury  is  penanced  as  in  the  peniten- 

‘Vide  cans,  xviii,  xxvi-xxvii,  xxxiii,  xii,  x,  in  Wasserschleben  255,  267, 
270,  271,  280-281;  Schmitz  II,  691,  693-694,  700-701.  Cf.  Albers,  in 
AKKR.  vol.  81,  pp.  409. 

‘Wasserschleben  267  agrees  with  Schmitz  II,  691:  “  conpulsus  a 
domino.”  Albers  omits  all  of  sect.  1  of  the  version  of  Wasserschleben 
and  Schmitz,  as  far  as  the  penalty  for  perjury  in  a  church.  Wasser¬ 
schleben  traces  sect.  1  to  the  P.  Bede,  v,  1-3,  and  sect.  2  to  the  P.  Egb., 
vi,  1-6.  Hence,  Albers’  version  of  this  canon  is  based  on  the  passage 
from.  Egbert  alone  as  a  source. 

‘Wasserschleben  and  Schmitz,  locc.  citt.,  agree.  For  further  discus¬ 
sion  of  sources,  supra,  chap.  iv. 

4 Wasserschleben  and  Schmitz  agree;  Albers  has  ten  instead  of  eleven. 
The  latter  is  nearer  to  that  of  P.  Th.  and  accepted  versions  of  P.  Egb., 
vi,  from  which  this  and  following  sub-sections  come. 

5 Wasserschleben  and  Schmitz;  but  Albers  has  four  months. 

6  All  agree. 

’’Ibid.,  save  for  verbal  variants  in  Albers. 


ENGLISH  PENITENTIAL  DISCIPLINE 


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[540 


tials  of  Theodore  and  of  Egbert; 1  but  the  wilful  perjurer 
after  doubt  is  to  receive  two  years.2 

In  canon  xxvi,  perjury  is  also  penanced  among  capital 
offences.3  But  this  canon  also  prescribes,  after  the  Peni¬ 
tential  of  Egbert,  penances  according  to  rank :  for  a  layman, 
four  years;  for  a  clerk,  five;  subdeacon,  six;  deacon,  seven; 
priest,  ten;  bishop,  twelve,  if  habitual.  All  these  are  ac¬ 
cording  to  Pseudo-Bede  II.  Albers’  version,  or  Penitential  I, 
agrees  in  general  with  these  but  presents  some  important  dif¬ 
ferences.  It  prescribes  three  years  for  the  laity,  and  for 
perjury  in  general.  It  has  severer  penances  for  habitual 
perjury:  if  committed  by  a  bishop,  fourteen  years;  if  by  a 
priest,  twelve;  if  by  a  deacon,  ten;  if  by  a  subdeacon,  eight; 
if  by  a  clerk,  seven ;  if  by  a  layman,4  five. 

Canon  xxvii,  in  the  editions  of  Wasserschleben  and  of 
Schmitz,  includes  false  witness  among  the  lesser  sins.5  Fol¬ 
lowing  canon  ii  of  the  Penitential  of  Egbert,  it  prescribes 
milder  penalties;  for  a  layman,  one  year;  for  a  clerk,  two; 
subdeacon,  three;  deacon,  four;  priest,  five;  bishop,6  seven. 

'Three  years,  also  in  many  others.  Vide  infra. 

*  All  agree,  save  for  variant  spelling.  Allbers  adds  the  familiar  re¬ 
mark  about  the  harmlessness  of  swearing  on  the  hand  of  a  layman. 

8  For  ecclesiastical  definitions  and  classifications,  see  ch.  ii.  See  P. 
Egb.  can.  i,  Wasserschleben,  Schmitz  I,  II,  693.  For  Ps.-Bede,  can. 
xxvi,  vide  Wasserschleben  270,  Schmitz  II,  693  et  seq.,  Albers,  cited 
p.  405  et  seq.  (headed  “  Capitula  I")  “ De  Capitalia  (  !).”  It  is  here 
classed  with  adultery,  theft,  robbery,  drunkenness,  general  cursing,  and! 
given  the  same  penance  with  the  above  and  homicide,  q.  v.  The  list  of 
Albers’  version  includes  also  “  idolatra,  molles,  sodomita,”  p.  406. 

4 It  groups  habitual  perjury  with  other  “capital  crimes.”  For  the 
passage,  see  Albers,  article  cited,  p.  405 :  “  Si  consuetudine  erit  episco- 
pus  ”,  etc. 

6 False  witness  is  grouped  among  the  lesser  sins  with  theft  and  the 
like.  The  passage  is  found  in  Wasserschleben  271,  Schmitz  II,  694'. 
“  De  minoribus  fcccatis”;  omitted  in  Albers. 

6  Cf.  the  same  versions,  locc.  citt. :  “  De  .  .  .  maledictione  ac  detrac¬ 
tion  causa  invidiae,”  etc. — much  harsher. 


REINFORCING  THE  SECULAR  LAWS 


541] 


183 


Another  canon  (xxxiii) ,  after  the  Penitential  of  Bede,1 
penances  false  witness  according  to  the  degree  of  crime  or 
of  guilt  (of  the  offence  for  which  it  was  given?). 

Canon  xlix,  omitted  by  Albers,2  contains  four  sections  in 
Wasserschleben’s  version  and  five  in  that  of  Schmitz; 3  the 
differences  consisting  in  numbering  alone.  Most  of  the  last 
section  deals  specifically  with  perjury  in  the  oath  of  fealty.4 
Section  1  prescribes:  for  wilful  perjury,  if  by  a  bishop, 
twelve  years,  four  of  them  on  bread  and  water;  by  a  priest, 
ten,  three  of  them  on  bread  and  water;  by  a  deacon  or 
monk,  seven,  three  of  them  on  bread  and  water;  by  a  sub- 
deacon,  six,  of  which  two  must  be  on  bread  and  water ;  by 
a  layman,  three,  one  of  them  on  bread  and  water.  For  per¬ 
jury  under  compulsion  or  through  any  necessity  or  uncon¬ 
sciously,  the  expiation  is  three  years,  one  of  which  must  be 
on  bread  and  water.  If  committed  through  greed,6  one 
should  sell  all  and  devote  one’s  life  to  a  monastery.  If  it 
has  not  been  through  greed  but  in  peril  of  death,  the  penance 
is  unarmed  exile  for  three  years  on  bread  and  water;  two 


1P.  Ps.  Bede  II,  can.  xxxiii,  after  P.  Bede,  v,  4  et  seq.  For  the  fol¬ 
lowing,  vide  Wasserschleben  273;  Schmitz  II,  695;  omitted  in  Albers’ 
version,  or  Pseudo-Bede  I. 

2  This  canon  xlix  is  apparently  derived  from  the  Council  of  Elvira, 
(an.  305?),  can.  lxxiv,  in  Hefele,  op.  cit.,  (English  translation),  I,  168: 
“  L>e  falsis  testibus :  ”  “  Falsus  testis  prout  est  crimen  abstinebitur,”  etc. 
More  definite  penances  follow  and  will  be  discussed  infra,  this  chapter. 
They  are  omitted  by  Ps.  Bede,  can.  xxvii. 

’Wasserschleben  280;  Schmitz  II,  700-701,  the  latter  numbering  the 
citation  sect.  1,  from  the  “  Judicium  Theodori,”  while  Wasserschleben 
includes  it  in  sect.  1. 

4  Headed  in  Wasserschleben  but  not  in  Schmitz :  “  De  violatoribus 
juramenti  regalis.”  Wasserschleben  regards  this  as  Continental  in 
origin,  from  the  Council  of  Altheim,  (an.  916),  cans,  xxii  et  seqq. 
The  rubric  stands  before  both  sections  3  and  4  in  Wasserschleben’s 
version  but  is  omitted  by  Schmitz.  For  further  detail  on  the  kinds  of 
perjury  and  oaths,  infra. 

5 Of  a  layman:  vide  locc.  citt. 


ENGLISH  PENITENTIAL  DISCIPLINE 


184 


[542 


years  more  without  flesh  and  wine;  then  two  in  almsgiving; 
making  a  total  of  seven  years’  penance  before  communion, 
in  addition  to  freeing  a  slave  (or  serf?).1 *  False  witness  is 
to  be  expiated  by  a  bishop  seven  years,  of  which  three  must 
be  on  bread  and  water;  if  committed  by  a  priest,  five,  of 
which  three  must  be  on  bread  and  water;  if  by  a  deacon  or 
monk,  four,  of  which  two  must  be  on  bread  and  water, 
besides  deposition  until  the  penance  is  complete;  if  by  a 
clerk  or  a  layman,  three,  of  which  one  must  be  on  bread 
and  water.  Finally,  for  consent  to  false  witness,  the  penance 
is  five  years. 

Section  2  of  canon  xliix,  citing  the  “  Judicium  Theo- 
dori  ”  2  agrees  with  the  Penitential  of  Theodore,  canon  vi, 
as  regards  perjury  on  a  layman’s  hand;  on  the  hand  of  a 
bishop,  priest,  or  deacon;  or  on  an  altar  or  consecrated 
cross;  or  on  an  unconsecrated  cross;  or  under  compulsion. 
But  it  differs  from  that  ascribed  to  Theodore  by  prescribing 
four  years  for  simple  perjury,  instead  of  three;  and  ten 
years  for  that  in  a  church,  instead  of  eleven.  It  also  adds 
penances  of  seven  years  for  suborning;  one  year  for  those 
unconsciously  suborned;  and  two  years  for  wilful  perjury 
after  doubt.3 

Section  3  (2),  apparently  after  a  Continental  source4 
from  the  tenth  century,  prescribes,  for  wilful  perjury,  seven 


1  “  Post  vii  annos  judicio  sacerdotis  communicet,”  in  locc.  citt.  For 
discussion  of  “  servurn  ”,  ch.  ii,  on  penances. 

’Erroneously,  as  will  appear.  Not  numbered  in  Wasserschleben. 

3 But  variants  of  P.  Th.  can  vi,  give  ten  years  for  that  in  a  church; 
see  that  penitential,  though  this  variant  is  not  generally  accepted. 
Wilful  perjury  after  doubt  apparently  covers  the  meaning  of  ‘‘  qui 
autem  suspicatur — tamen  jurat  pro  consensu,”  in  locc.  citt. 

4According  to  Wasserschleben  280  ct  scq.,  Syn.  Altheim.  an.  916,  can. 
xxv  and  the  following  section ;  but  Schmitz  omits  source  and  Was¬ 
serschleben  omits  references. 


543]  REINFORCING  THE  SECULAR  LAWS  ^5 

years,  “  according  to  the  canons.”  For  unconscious  perjury 
or  suborned  perjury,  three  quarantines  on  bread  and  water 
and  salt;1  if  committed  under  compulsion  for  the  redeem¬ 
ing  of  life,  three  quarantines  and  the  required  weekdays; 2 
if  for  any  necessity,  three  years  on  bread  and  water;  if  by 
a  “  senms  ”  compelled  by  his  lord,  three  quarantines  and  the 
required  weekdays;  for  wilful  perjury  and  for  subornation, 
twelve  years  strictly,3  “  according  to  the  canons  or  leave  the 
world,  according  to  Ambrose,  and  serve  God,  according  to 
Augustine.”  For  unconscious  perjury  the  penance  is  one 
year;  for  those  unconsciously  suborning,  seven  years, 
strictly;  if  done  wilfully  after  doubt — three  years  on  bread 
and  water  and  salt.4 

Section  4,  (3),  prescribes,  for  wilful  subornors,  a  mon¬ 
astic  life  and  deprivation  of  arms,  or  three  wars  “  among 
the  audientes  ”  on  bread  and  water  and  salt.  After  an¬ 
other  year  of  severe  penance,  they  shall  undergo  the  six 
years’  penance ;  in  another  year  they  may  receive  communion 
without  the  sacrifice;  and,  after  fulfilling  the  tenth  year, 
attain  (full?)  communion.5  “Others,6  however,  (say) 
twelve  years,  and  in  this  consent,  that  never  may  they  eat 
flesh  or  drink  wine  all  the  days  of  their  lives.” 

Section  5,  (4),  discusses  chiefly  perjury  in  the  oath  of 
fealty.  The  latter  portions  repeat  the  penance  for  perjury 

1  For  explanations  of  this  and  similar  phrases,  see  chs.  ii,  iii,  also  infra. 

2“Coactus  pro  vita  redimenda”  is  explained  infra. 

3  Supra,  as  in  notes. 

*Vide  supra,  for  Latin,  sect.  4  (3). 

5  “  Post  alium  vero  sexennium  penitentiale  subiciantur  acriori  et  alio 
anno  communionem  sine  oblatione  percipiant  et  expleto  decennio  com- 
munionem  consequantur,”  locc.  citt.  Cf.  supra,  on  penitential  stations, 
chs.  ii,  iii. 

“For  explanation  of  “  alii,”  vide  infra,  summary,  for  penances  and 
sources. 


ENGLISH  PENITENTIAL  DISCIPLINE 


1 86 


[544 


committed  from  greed,  mentioned  above.1  Canon  li,  after 
the  Council  of  Treves,  canon  xxii,  is  interesting  as  prescrib¬ 
ing  the  ordeal  of  fire  for  notorious  suspects.2 

The  important  relation  of  the  Penitentials  to  the  question 
of  perjury  is  thus  seen  in  their  many  penalties  for  it  and 
in  the  distinctions  according  to  degree.  The  meaning  of 
perjury  in  the  Penitentials  apparently  applied  to  that  com¬ 
mitted  in  any  oath.  At  least  in  the  later  pre-Norman 
period,3  it  included  perjury  in  the  oath  of  allegiance  and 
in  those  of  fealty  to  the  king  or  to  a  lord;  breaking  a 
pledged  word ;  being  outsworn  in  compurgation,  in  the  case 
of  the  principal;  perjury  by  an  oath-helper;  that  committed 
in  vows  to  God;  and,  in  the  later  period,  possibly  something 
approaching  breach  of  contract. 

During  this  period,  all  these  forms  of  oath  existed  or 
came  into  existence.  As  they  were  usually  sworn  on  some 
sacred  object,  such  as  have  been  mentioned,  the  Church 
necessarily  provided  severe  penances  for  the  impiety  which 
was  committed  in  perjury,  in  addition  to  the  iniquity  and 


1  According  to  Wasserschleben  281,  sect.  4;  Schmitz  II,  701,  sect.  5- 
The  variant  “  sacramentum,”  in  Wasserschleben  281,  note  1,  may  refer 
to  the  loss  of  oath-privilege  often  prescribed  in  many  penitentials  and 
secular  laws.  Such  a  mistake  in  copying  from  a  possibly  corrupt 
original  would  be  facilitated  by  the  same  number  of  letters  and  the 
similar  beginning  in  “  sacramentum  ”  and  “  sacrificium.”  According 
to  Wasserschleben,  the  Synod  of  Altheim,  from  which  some  of  this 
is  taken,  has  “  sacramentum The  distinction  is  important,  as  bearing 
upon  the  question  of  public  penance;  supra,  chaps,  ii,  iii. 

*“  Si  vero  tanto  talique  crimine  publicatur,  ut  criminosus  a  populo 
suspicetur  ....  aut  ....  aut  ....  per  ignem  candente  ferro,”  etc. 
Vide  Wasserschleben  282;  Schmitz  II,  701.  Possibly  Continental  id 
origin,  this  passage  is  paralleled  in  Anglo-Saxon  usage. 

3  Note,  however,  the  well-known  fact  that  the  oath  to  the  King  of 
England  did  not,  apparently,  precede  feudal  allegiance  until  after 
William  the  Conqueror  forced  such  a  rule  upon  his  subjects  in  the 
Salisbury  oath. 


REINFORCING  THE  SECULAR  LAWS 


545] 


187 


harmfulness  of  perjury  itself.1  That  they  applied  to  per¬ 
jury  in  connection  with  court  procedure  is  also  apparent 
from  the  ecclesiastical  penalties  previously  mentioned  as 
being  found  in  the  secular  laws.  Besides  those  already  men¬ 
tioned,2  there  is  a  definite  command  in  II  Athelstan,  26,  1, 
that  the  confessor  announce  to  the  bishop,  within  thirty  days, 
if  the  perjurer  wishes  to  turn  to  penance,  “  but  if  not,  let 
him  expiate  as  the  bishop  will  grant.”  3 

In  summary,  it  is  noteworthy  that  all  the  Anglo-Saxon 
penitential s,  'together  with  the  Continental,  distinguished 
degrees  of  perjury  according  to  the  consecrated  objects  on 
which  the  oath  was  sworn  or  according  to  the  motive  prompt¬ 
ing  the  perjury,  rather  than  for  the  motive  of  the  oath.4  As 
regards  the  first  class,  Lea  has  severely  censured  the  dis¬ 
tinctions  according  to  material  objects  on  which  the  oath 
was  sworn,  on  the  ground  that  it  lessened  the  value  of  the 
simple  oath.5  But  he  omits  mentioning  the  numerous  un¬ 
qualified  penances  for  simple  perjury  and,  even  more  harm¬ 
ful  to  his  argument,  fails  to  show  clearly  and  fairly  the 


1  For  oaths  of  fealty  on  the  hand  of  a  lord,  on  relics,  etc.,  see  formula 
of  oath  to  a  lord,  in  Liebermann  II,  s.  v.  “  Eide.” 

*  Vide  supra, 

’Liebermann  II,  618;  A.-S.  “His  scrift  hit  gecythe  tham  biscope” 
— “  bete  be  tham  the  se  biscop  him  forgifan  wille.” 

According  to  Liebermann,  op.  cit.  II,  s.  z\  “  Meineid,”  no.  6,  count¬ 
ing  perjury  as  one  of  the  most  grievous  crimes. 

For  the  forms  of  oaths  among  the  Anglo-Saxons,  vide  Liebermann, 
loc.  cit.,  s.  v.  “  Eidesform  ”  and  the  Anglo-Saxon  formulae  published1 
in  his  vol.  i. 

A  few  penances  for  perjury  are  mentioned  in  ibid.  II,  s.  v.  “Meineid,’1 
no.  9a.  Cf.  supra,  chap,  v,  for  secular  laws  requiring  penance,  etc. 

iVide  supra,  rather  than  according  to  oath  of  fealty,  compurgation, 
pledge,  etc.  Though  some  of  the  Continental  penitentials  make  such 
distinction. 

5Lea,  Superstition  and  Force  29  et  seq.,  citing  the  P.  Ps-Th.,  P.  Ps.- 
Cumm,,  P.  Dav.,  P.  Astes.,  after  Wasserschleben. 


ENGLISH  PENITENTIAL  DISCIPLINE 


1 88 


[546 


connection  between  perjury  and  the  forms  of  oaths  then 
used.1  It  has  also  been  previously  demonstrated  2  that  the 
sacramental  oath  of  compurgation  on  sacred  objects,  with 
a  religious  curse  attached  was  not  introduced  by  the  Chris¬ 
tian  Church,  but  that  the  latter  merely  made  use  of  an 
ancient  Germanic  custom.  Hence  we  conclude  that,  as  in 
our  modem  swearing  upon  the  Bible,  the  ancient  Germanic 
races  recognised  very  early  the  insufficiency  of  an  oath  with¬ 
out  sacral  safeguard. 

Consequently,  the  Church  did  not  introduce  a  distinction 
between  the  simple  oath  and  the  sacral  oath.  It  substituted 
Christian  sacral  objects  and  act;  and  in  severely  penancing 
the  impiety  of  such  perjury  they  were,  very  sensibly,  doing 
their  best  to  enforce  emphatically  respect  for  the  oaths  used 
in  the  customary  system. 

As  we  have  seen,  the  legal  forms  of  oath  were  all  directly 
connected  with  such  sacral  objects,  acts  or  persons.  Hence, 
the  use  of  unoonseorated  crosses  and  the  like  might  constitute 
illegal  procedure  and  facilitate  perjury  3  by  collusion  between 
the  conducting  priest  and  a  suborner,  compurgator,  or  wit¬ 
ness.  As  regards  the  omission  of  penance  for  perjury  on 
the  hand  of  a  layman,  that  provision  is  specifically  men¬ 
tioned  as  introduced  from  the  Greeks,  In  Germanic  proce¬ 
dure,  such  oaths  were  ordinarily  not  used  in  criminal  cases. 
They  may  refer  to  simple  promises  or  to  feudal  oaths,  at 
least  in  the  later  period;  though,  in  limited  cases,  in  pre- 
Norman  England,  oaths  might  be  sworn  on  the  hand  of  the 


JFor  these  penances,  vide  supra. 

2  Supra,  chap,  v,  s.  v.  "Religion;”  also  on  religious  safeguards,  and 
Lea,  op.  cit.,  passim. 

*E.  g.  the  suborner  of  perjury  might  induce  the  compurgator  to 
commit  perjury  by  securing  the  substitution  of  an  unconsecrated  object 
with  the  knowledge  of  the  compurgator  and,  necessarily,  of  the  con¬ 
ducting  priest.  Misconduct  of  compurgation  is,  indeed,  definitely  pro¬ 
vided  for  in  the  secular  laws;  vide  supra,  chap,  v,  under  compurgation. 


REINFORCING  THE  SECULAR  LAWS 


547] 


189 


reeve  (one  citation),  or  on  that  of  a  kinsman  who  is  not  a 
compurgator. 

Summarising  the  penances  for  perjury  according  to  sacral 
objects  and  persons,  the  following  penances  are  found  in  the 
English  penitentials:  if  committed  in  a  church  or  on  the 
Gospel  or  relics — eleven  or  seven  years,  rarely  four; 1  if  on 
the  hand  of  a  bishop,  priest  or  deacon,  or  on  an  altar  or 
consecrated  cross — usually  three  years,  rarely  one; 2  if  on 
an  unconsecrated  cross — one  year.3  In  fairness  to  Lea,  it 
may  be  remarked  that,  though  the  Church  did  not  introduce 
distinctions  between  a  simple  oath  and  a  sacral  oath,  yet  it 
distinguished  between  perjury  committed  on  two  classes  of 
consecrated  objects  and,  in  this  way,  possibly  weakened  its 
own  system. 

In  the  earlier  penitentials  used  in  England  and  in  the 
native  Celtic  penitentials,  there  was  little  distinction  of  de¬ 
grees  of  perjury  according  to  motive.  The  chief  division 
was  according  to  the  sacral  ritual  and  as  to  whether  it  was 

lVide  supra,  chap,  v,  under  compurgation. 

Penances  of  eleven  years  are  found  in  the  Penitentials  of  Theodore, 
Bede,  pseudo- Theodore,  and  pseudo-Cummean,  locc.  citt.,  supra. 
Those  for  seven  or  eleven  years  are  provided  in  P.  Egb.,  vi,  1  and  in 
the  Egbert-cycle ;  for  four  years,  in  Conf.  Ps.  Egb.,  xxxiv.  Cf.  P. 
Dav.,  xvi — that  he  shall  restore  four-fold,  in  Schmitz  I,  493.  The 
penance  at  first  is  for  simple  perjury  committed  in  a  church,  as  in 
Theodore,  and  the  alternatives  are  introduced  later. 

5For  three  years — the  Penitentials  of  Theodore,  Bede,  Egbert  (with 
an  alternative  of  one  or  seven),  pseudo-Theodore,  pseudo-Egbert.  Cf. 
Can.  Greg.,  P.  Mart.,  P.  Ps.  Cumin.,  v,  3  and  locc.  citt.,  supra ;  also 
Conf.  Ps.  Egb.,  xxxiv,  (Wasserschleben  314).  For  five  years,  see 
Schmitz’  edition  of  P.  VaL,  can.  i,  52. 

3  See  the  Penitentials  of  Theodore,  Egbert,  pseudo-Egbert,  pseudo- 
Bede,  pseudo-Theodore,  pseudo-Cummean,  and  Poenitentiale  Mar- 
tenianum,  locc.  citt.,  supra.  Note  the  omission  of  specific  penances  in 
the  Penitential  of  Bede  and  in  the  Canoncs  Gregorii  and  Capituld I 
Dacheriana;  though  a  distinction  is  implied  by  mentioning  consecrated 
crosses  in  them  in  connection  with  perjury.  Tn  P.  Egb.,  vi,  3  is  an 
alternative  of  seven  months;  znde  Wasserschleben  238  and  Schmitz  II, 
666. 


190 


ENGLISH  PENITENTIAL  DISCIPLINE 


[548 

wilful  perjury  or  that  under  compulsion.  Perjury  in  gen¬ 
eral,  mentioned  above  as  “  simple  perjury  ”,  usually  meant 
any  kind  of  wilful  perjury.1  It  was1  penanced  by  three  or 
seven  years,  or  according  to  the  grades  of  the  clergy  as  con¬ 
trasted  with  the  laity,2  sometimes  being  four  years  for  the 
laity. 

'Compulsory  perjury,  or  perjury  under  compulsion,  is  de¬ 
finitely  provided  for  in  nearly  all  of  the  Penitentials.3  The 
penance  was  either  one  year,  three  quarantines,  f  orty  days,  or 
two  years.,  of  which  one  must  be  on  bread  and  water;  or 
three  years,  of  which  one  must  be  on  bread  and  water. 4 
The  fact  that  there  was  frequent  provision  f  or  lighter  penal- 

1  The  penalty  is  severer  than  for  compulsory  or  for  unconscious  per¬ 
jury,  mentioned  in  the  same  canons;  hence  the  inference. 

*For  three  years — P.  Th.,  can.  vi,  5;  P.  Bede,  can.  iii,  2  or  can.  v,  2; 
Cap.  Dach.,  can.  clii;  P.  Egb.,  can.  vi,  5;  P.  Ps.  Bede,  (Albers’  ed., 
pp.  406,  404),  P.  Ps.  Egb.,  lib.  ii,  can.  lxviii;  P.  Ps.  Bede,  (Wasser- 
schleben,  iSchmitz),  can.  xviii,  2,  (but  cf.  four  years  in  can.  xlix). 
For  four  years — Syn.  Viet.,  can.  v;  P.  Ps.  Bede  (Albers)  ;  P.  Egb.,  can. 
i;  cf.  P.  Dav.,  loc.  cit.  supra,  and  P.  Ps.  Th.,  can.  ix  (24),  1.  For 
a  penance  of  seven  years  and  that  he  never  be  allowed  to  take  an  oath, 
P.  Vinn.  can.  xxii  in  Schmitz  I,  504  after  Wasserschleben ;  cf.  P. 
Colutnb.  B.,  can.  v.  For  definite  references,  vide  supra  under  individual 
penitentials.  For  penances  of  the  clergy  for  perjury,  vide  supra  and) 
especially  Schmitz  I,  375,  408,  477,  554-555,  664,  and  II,  passim ;  par¬ 
ticularly  in  P.  Ps.  Bede,  P.  Ps.  Egb.,  P.  Ps.  Th.,  P.  Egb.,  can.  i,  but 
not  in  P.  Th.  nor  its  native  cycle.  Penances  are  enumerated  supra, 
under  individual  penitentials. 

*P.  Th.,  can  vi,  5;  P.  Bede,  can.  iv  or  v;  P.  Egb.,  can.  v:,  4;  Ps.  Bede 
II,  can.  xviii;  Conf.  Ps.  Egb.,  can.  xxxiv;  P.  Mart.,  can.  liii,  2;  P.  Ps. 
Th.,  can.  ix,  3,  7;  Sin.  Viet.,  can.  v;  P.  Ps.  Bede,  can.  xlix.  Cf.  Ps. 
Cumm.,  can.  v,  3;  P.  Rom.,  can.  xxiv;  and  P.  Vinn.,  in  Schmitz  I,  504; 
omitted  in  P.  Dav.  and  in  Can.  Greg. 

14  For  three  quadrigesimae — P.  Th.,  can.  vi,  2;  P.  Bede,  can.  iv  or  v, 
1;  P.  Egb.,  can.  vi,  4,  as  an  alternative;  P.  Ps.  Bede,  can.  xviii;  P.  Ps. 
Th.,  loc  cit.,  for  unconscious  perjury,  cf.  Sin.  Viet.,  v;  P.  Egb.,  can. 
vi,  3,  with  alternate.  Some  of  them  add  “  et  legitimas  ferias.” 

For  three  years — Ps.  Bede,  can.  xlix,  1,  of  which  one  year  must  be 
on  bread  and  water;  P.  Egb.,  can.  vi,  4,  as  an  alternative;  P.  Vinn., 
passim;  P.  Ps.  Th.,  as  an  alternative. 


REINFORCING  THE  SECULAR  LAWS 


549] 


I9I 


ties  for  unconscious  and  for  compulsory  perjury  further 
supports  the  contention  above — that  the  compurgation 
system  fostered  perjury  by  frequently  obliging  the  compur¬ 
gator  to  swear  to  the  truth  of  that  of  which  they  were 
ignorant. 

Perjury  “  per  cupiditatem  ”  or  from  greed,  mentioned  in 
some  of  the  later  penitential®,  may  refer  to  that  committed 
in  cases  of  theft  and  of  debt ;  of  vouching  to  ownership  of 
property  wfiich  it  is  suspected  has  been  stolen ;  and  the  like.1 
It  is  usually  omitted  in  the  penitential®  of  English  origin, 
possibly  being  included  in  other  forms.  Though  it  is  found 
in  pseudonymous  penitential®  used  in  England  but  probably 
of  Continental  origin,  and  in  Continental  regulations.2 

Suborning  of  perjury  is  not  specifically  mentioned  in  the 
penitential®  of  Theodore,  of  Egbert,  or  of  Bede ;  nor  in  the 
Theodore  cycle;  nor  in  the  Confessional  of  pseudo-Egbert; 
nor  in  the  Penitential  of  pseudo-Egbert.  But  it  is  penalised 
in  the  Synod  of  Lucus  Victoriae,  in  the  Penitential  of 
pseudo-Theodore,  and  in  several  of  the  Continental  peniten¬ 
tial®.3  The  penance  was  usually  seven  years ;  4  but  was  one 
year  for  those  suborned.5 


•In  this  connection,  see,  especially,  P.  Dav.,  can.  xvi,  on  perjury  in  a 
church:  that  the  perjuror  restore  four-fold;  vide  Wasserschleben,  ut 
infra ,  and  Schmitz  I,  493. 

For  explanations  of  such  oaths,  supra ,  chap.  v. 

3 In  P.  Ps.  Th.,  can.  ix,  (or  xxiv),  8,  (Wasserschleben  593)  ;  P.  Ps. 
Bede,  can.  xlix,  1,  (Wasserschleben,  passim  and  Schmitz  II,  700)  ;  P. 
Ps.  Cumrn.,  can.  v,  3-4,  in  Schmitz  I,  628;  P.  Eccl.  Germ.,  cans,  xxi- 
xxiii;  P.  Rom.,  can.  xxv,  in  Schmitz  I,  478,  cf.  416.  The  usual  penance 
was  severe:  that  the  perjuror  must  sell  all  and  enter  a  monastery  for 
life;  or  sometimes  that  there  should  be  ten  years  of  penance  and  that 
he  should  also  free  a  slave  (serf?). 

3Ps.  Bede,  can.  xlix,  1  (omitted  by  Albers)  ;  Syn.  Viet.,  can.  v 
(Wasserschleben  104,  Schmitz  I,  494)  ;  P.  Ps.  Th.,  can.  ix,  4,  in  Wasser- 
scleben,  593;  P.  Ps.  Cumm.,  can.  v,  6,  in  Schmitz  I,  628  and  II,  621. 

4 But  Syn.  Viet.,  cans,  v,  ix  probably  had  six  years  for  the  laity;  see 
Wasserschleben  ed>. 

6P.  Egb.,  can.  vi,  3 :  “  Seductus  ignorans  et  postea  cognoscit,”  the  usual 


192 


ENGLISH  PENITENTIAL  DISCIPLINE 


[55° 

Those  who  commit  perjury  wilfully,  after  suspicion  that 
they  are  being  led  into  it,  were  penalised  in  -the  peniitentials 
of  Egbert,  of  pseudo-Bede,  and  of  pseudo-Theodore;  in  the 
Synod  of  Lucus  Victoriae  and  in  the  Confessional  of  pseudo- 
Egbert  ;  as  well  as  in  many  Continental  penitentials.1  The 
usual  penance  was  two  or  three  years.2 

Perjury  committed  in  peril  of  death  or  to  redeem  life  is 
not  mentioned  in  the  penitentials  of  Theodore,  of  Bede,  or 
of  Egbert;  nor  in  the  Poenitentiale  Martenianum,  in  the 
Theodore-cycle,  nor  the  pseudo-Egberts.  But  it  is  found 
in  the  pseudo-Bede,  the  pseudo-Theodore,  and  in  Continental 
penitentials.3  It  may  have  referred  to  perjury  by  a  prin¬ 
cipal  to  save  his  life  in  a  capital  or  botless  case  or  possibly, 
when  under  compulsion.4 

Contrary  to  the  assumption  of  Brunner  and  other  writers 

form;  vide  Schmitz  II,  666  and  locc.  citt.  supra.  Ps.  Bede  has  the  alter¬ 
natives  of  four  quarantines  or  forty  days.  P.  Bede,  can.  iii  or  iv  or  v 
(according  to  the  version  used),  sect.  3  has  one  year;  vide  Schmita 
II,  658.  Cf.  Syn.  Viet.,  can.  v,  (Wasserschleben  104  and  Schmitz  I, 
494)  ;  P.  Ps.  Th.,  can.  ix  (24),  sect.  5,  (Wasserschleben  593  and  Schmitz 
II,  416) — if  it  has  been  ignorantly,  the  penance  should  be  lighter. 

1  P.  Egb.,  can.  vi,  sect.  6  in  Schmitz  I,  579  and  II,  666;  Wasserschleben 
238.  . 

2 For  two  years — Ps.  Egb.,  Syn.  Viet.  For  three  years  as  an  alterna¬ 
tive — Conf.  Ps.  Egb.  Ps.  Bede  II  (Wasserschleben  and  Schmitz)  has 
three  years  in  can.  xlix,  1  according  to  Wasserschleben  and  two  years 
according  to  Schmitz.  Vide  Schmitz  II.  700  and  locc.  citt.,  supra, 
under  Ps.  Bede. 

3  For  three  of  two  years — Conf.  Ps.  Egb.,  can,  xxxiv,  in  Wasserschle¬ 
ben  314;  P.  Ps.  Bede.  can.  xlix,  1  (three  on  bread  and  water)  ;  cf. 
P.  Ps.  Th.,  can.  viii,  6. 

4-<  Per  mortis  periculum  incurrit  ” — three  years  unarmed,  exiled,  of 
which  one  must  be  on  bread  and  water ;  two  more  without  flesh  and 
wine;  besides  the  freeing  of  a  slave  or  the  giving  of  alms,  etc.  The 
total  must  be  seven  years;  cf.  P.  Th.,  can  ix,  in  Wasserschleben  593; 
Ps.  Cumm.  can.  v,  section  4  in  Schmitz  I,  628,  II,  621 ;  Ps.  Bede,  can. 
xlix  in  Schmitz  II,  700. 


REINFORCING  THE  SECULAR  LAWS 


193 


551] 

on  secular  law,1  there  was  a  distinction  between  perjury 
and  false  witness.  At  least  sudh  a  distinction  is  found  in 
the  penitentials  of  pseudo-Bede,  pseudo-Theodore,  and  on 
the  Continent;  though  it  is  omitted  by  those  of  Theodore, 
Bede,  and  Egbert,  in  the  Theodore  and  Egbert  cycles  and 
in  the  secular  laws.  As  in  the  case  of  perjury,  various 
motives  were  distinguished  in  thq  latter  manuals :  for  ex¬ 
ample  the  personal  favoring  of  a  kinsman,  greed  and  the 
like.  They  were  also  differentiated  according  to  the  crime 
or  case  in  which  false  witness  had  been  given.2  The  false 
witness  mentioned  may  have  been  that  by  community  or 
transactions  witnesses  in  sales,  'exchange,  vouching  to  war¬ 
ranty  and  other  business  transactions  which  required  or  used 
witnesses  to  ownership.3  In  that  connection  the  milder 
penalties  imposed  may  further  connote  the  low  estimate  of 
witnesses  in  Germanic  law.4 

SECT.  4.  HOW  PENANCE  AIDED  THE  SECULAR  LAWS  THROUGH 

ADDITIONAL  PENALTIES. 

Heinous  sins  5 — e.g.  murder,  incest,  adultery  and  grand 
larceny — which  usually  constituted  crimes  punishable  by 

lSee  Brunner,  s.  v.  “  Meineid" ;  also  supra-  on  false  witness,  especially 
P.  Egb.  can  ii  in  Wasserschleben  234,  Schmitz  II,  663. 

2  The  Council  of  Elvira  (an.  305  or  306)  laid  down  the  principle  that 
false  witness  should  be  penanced  according  to  the  degree  of  crime; 
Schmitz  I,  376  and  supra.  For  penances:  P.  Bede,  can.  iv  or  v,  sect.  4, 
cf.  sect.  6  in  Schmitz  I,  560,  Wasserschleben,  226;  cf.  Ps.  Cumm.  can. 
v,  sect.  11 ;  “from  hate” — Ps.  Th.  in  Wasserschleben,  590 — seven  years, 
of  which  three  must  be  on  bread  and  water. 

*For  explanations  of  these  systems  of  witnessing,  vide  supra,  ch.  v. 

On  further  Continental  penances  for  perjury,  vide  Schmitz  I,  747, 
802,  804,  81 1,  400,  786,  812;  II,  365,  485,  417,  295,  m  35 L  359,  363,  etc. 
For  further  Anglo-Saxon  penances  on  perjury,  vide  supra,  ch.  v;  also 
in  Thorpe,  pp.  26  ct  seq.,  33,  318  and  passim. 

*l/Tide  supra,  chap.  v. 

5 Merely  a  summary  is  presented  here,  as  penitential  discipline  of  these 
offences  has  been  thoroughly  treated  in  works  on  canon  law  and  the 

like. 


194 


ENGLISH  PENITENTIAL  DISCIPLINE 


[552 

heavy  secular  penalties,  also,  were  punished  by  severe  pen¬ 
ances.  Hence,  in  such  cases,  the  culprit  who  had  been  con¬ 
victed  in  court  had  to  undergo  a  total  of  punishment  com¬ 
posed  of  severe  ecclesiastical  and  secular  parts.  For  example, 
premeditated  murder  1  would  thus  be  punished  by  payment 
of  wergild  plus  the  performance  of  anywhere  from  seven 
to  fifteen  years  of  severe  penance,2  varying  with  the  rank. 
For  adultery  of  a  freeman,  the  total  punishment  might  in¬ 
clude  a  heavy  secular  3  payment  plus  three  to  ten  years’ 

'For  murder — seven  years  on  bread  and  water,  in  Can.  Hibern., 
( Wasserschleben  136),  with  alternative  ten  years;  but  P.  Th.,  iv,  4, 
has  seven  years,  three  of  them  without  flesh  and  wine,  (Wasserschleben 
188).  Cf.  Cap.  Dach.,  lxxxii,  (Wasserschleben  152)  ;  Ps.  Bede  II,  can. 
xiii,  2,  with  alternatives;  P.  Ps.  Egb.,  lib.  ii,  can.  i,  (Wasserschleben 
323)  ;  P.  Egb.,  iii,  (Wasserschleben  234,  Schmitz  I,  576)  ;  P.  Ps.  Bede 
II,  can.  xvi,  with  alternative,  (Wasserschleben  266). 

For  penances  of  thirteen  or  fourteen  years,  with  compensations,  vide 
Can.  Hibern.,  De  Disput.  Hibern.  Sin.,  (Wasserschleben  136)  ;  P.  Egb., 
iii,  as  alternative;  Ps.  Bede  II,  can.  xvi,  as  alternative. 

For  ten  years  of  penance — Can.  Hibern,  loc.  cit.,  can.  iii,  as  alternative. 

For  six  years  of  penance — P.  Egb.,  iv,  11,  as  alternative,  (Wasser¬ 
schleben  235;  Schmitz  I,  577). 

For  five  years  of  penance — P.  Egb.,  iv,  11,  as  alternative,  locc.  citt., 
supra. 

For  four  years — ibid.,  as  alternative;  P.  Bede,  iii,  2,  (Wasserschleben 
224  and  235)  ;  Ps.  Bede  II,  xiii,  2,  as  alternative,  (Wasserschleben  265). 

For  three  years — P.  Dav.,  xi,  (Wasserschleben  102)  ;  Syn.  Viet.,  ii, 
(Wasserschleben  104) ;  P.  Ps.  Egb.,  lib,  ii,  can.  i,  (Wasserschleben 
323)  ;  P.  Mart.,  Ii,  4. 

*For  excommunication  and  other  disabilities  of  penitents,  supra, 
chaps,  ii,  iii  and  v,  under  those  heads.  For  secular  penalties,  supra, 
chap,  v,  passim. 

‘Both  penances  and  secular  penalties  for  adultery  often  varied  with 
the  rank;  vide  supra,  chap,  v,  under  social  discriminations  and  chap,  ii, 
under  penances  of  the  clergy,  etc. 

For  varying  secular  penalties  for  adultery  of  a  freeman,  vide  VI 
Ethr.  12;  7  Edm.  4;  and  Liebermann,  Gesetse  II,  s.  v.  "  Ehebruch.” 
Cf.  Wilda,  Strafrecht  821-822, 

For  three  years  of  penance  for  adultery,  vide  Wasserschleben  198,  102, 
222  and  258.  For  other  penances  of  this  offence,  vide  Schmitz’  edition, 
passim. 


REINFORCING  THE  SECULAR  LAWS 


195 


553] 

severe  penance;  while  somewhat  similar  penances  were  often 
prescribed  for  incest.1  Ecclesiastical  Influence  upon  the 
secular  laws  is  also  shown  in  provisions  punishing  adultery 
>r  fornication  with  one’s  slave.  Secular  punishment  of  the 
lusband  for  breaking  his  marriage  vows  is  missing  in  the 
earlier  secular  laws,  hut  appears  in  later  laws,  a  fact  due  to 
:he  influence  of  the  Church.  Even  then  the  penalty  is  more 
}ften  of  an  ecclesiastical  nature  and  far  lighter  than  for  in- 
idelity  of  the  wife. 

Besides  adding  the  foregoing  and  other  ecclesiastical 
penalties,2  the  penitential  system  supplied  severe  punishment 
for  offences  that  are  now  penalised  by  secular  government  as 
most  heinous  crimes  but  were  then  visited  with  too  light 
penalties.  In  this  way  it  exerted  a  powerful  influence  to¬ 
wards  stiffening  the  penalties  for  such  crimes  as  well  as  in 
temporarily  filling  important  gaps.  In  other  important 
cases,  the  penitential  system  provided  penalties  for  serious 
offences  of  immorality  that  were  either  left  exclusively  to  its 
jurisdiction  3  or  were  often  entirely  neglected  by  the  secular 
law.  In  particular,  its  penalties  for  rape,4  for  fornication, 

'Incest  with  one’s  mother  was  penalised  by  fifteen  or  fourteen  or 
twelve  years;  vide  Wasserschleben  253,  151,  171,  344,  260,  307  and 
Schmitz  I,  576.  If  committed  with  one’s  sister,  the  penance  was  five 
years,  in  P.  Bede,  can.  ii,  17,  (Wasserschleben  222). 

For  secular  punishment  of  incest,  vide  EGu.  4  and  Cn.  Sec.  52;  also 
Liebermann,  op.  cit.  II,  s.  v.  “  Blutschande”  and  supra,  chap,  v,  under 
intermingling  of  jurisdictions,  secular  requirement  of  penance,  etc. 

’See  excommunication  and  other  disabilities,  supra,  chaps,  iii  and  v. 

lVide  supra,  chap,  v,  under  jurisdiction. 

4  On  rape,  vide  Liebermann,  op.  cit.  II,  v.  “  Notsucht  ” ;  but  note 
Liebermann’s  remarks  on  the  ambiguity  of  laws  apparently  referring 
to  rape,  that  of  a  married  woman  not  being  distinguished  from 
adultery.  Rape  is  penalised  with  money  compositions  which  rise  with 
the  rank,  sometimes  as  high  as  the  wergild ;  and  the  penalty  increased 
in  the  later  laws.  Vide  Liebermann,  loc.  cit.;  Wilda,  Strafrecht,  etc. 
837;  and  P.  and  M.  I,  188,  for  severe  later  laws.  Rape  of  a  female 


ENGLISH  PENITENTIAL  DISCIPLINE 


196 


[554 


and  for  abortion,1  possessed  great  value  in  counteracting  the 
somewhat  low  estimate  2  in  which  women  and  children  were, 
apparently,  held  'by  the  secular  laws.  In  their  frequent 
penances  for  brawling  3  of  various  kinds,  in  distinguishing 
various  degrees4  of  homicide,  according  to  motive,  and  in 
their  various  provisions  penalising  mistreatment  of  slaves  5 
and  of  serfs,  the  Penitentials  also  helped  to  place  a  higher 
estimate  upon  life  and  humanity. 


slave  by  a  male  slave  was  punished  by  castration ;  vide  Liebermann, 
loc.  cit. 

On  the  penances  for  rape,  abduction,  etc.,  in  the  Penitentials,  see  the 
standard  editions  of  Schmitz,  s.  v.  “  Raub,”  passim,  for  many  references- 

1  Fornication,  in  various  forms,  was  mostly  penanced  very  severely  in 
the  Penitentials.  They  often  required  penance  of  one  year,  with  added' 
severities,  though  some  have  as  high  as  three  or  five  years  of  penance; 
vide  Wasserschleben  101,  198  and  passim  and  Schmitz,  s.  v.  “  Unzucht”, 
etc. 

Abortion  is  penanced  by  long  terms  and  is  very  frequently  associated 
with  magic  in  the  Penitentials,  which  may  account  for  some  of  the 
severity.  Frequently  mentioned  by  the  Penitentials,  the  penance  for 
abortion  varied  from  a  frequent  prescription  of  three  years  to  as  low 
as  one  year  or  the  three  quadrigesimac.  See  the  standard  texts  in  the 
editions  of  Wasserschleben  and  of  Schmitz,  passim. 

’For  the  low  estimate  of  women  by  the  Anglo-Saxons,  vide  supra, 
for  the  low  penalties  for  adultery,  rape,  and  the  like.  Apparently  the 
picture  of  the  high  place  of  women  in  Germanic  literature  is  far  from 
the  average  conditions  that  actually  prevailed. 

3  Brawling  and  fighting  of  various  kinds  were  penanced  with  relative 
severity  in  the  Penitentials;  vide  Schmitz  I  and  II,  s.  v.  “  Streit.” 

4  As  a  part  of  the  well  known  influence  of  the  Church  in  general;  vide 
Schmitz  I  and  II,  s.  v.  “Mord”,  “Totschlag”,  etc. 

5E.  g.  by  adultery,  fornication,  homicide,  etc.,  q.  v.  A  frequent  pen¬ 
ance  for  certain  sins  was  the  emancipation  of  one  or  more  slaves  or 
serfs,  along  or  with  other  penance ;  vide  Schmitz  I,  277  et  seqq.,  4°4> 
499.  507.  557,  694- 


CONCLUSION 


In  conclusion,  we  hope  that  our  work  may  prove  a  con¬ 
venient  guide  to  the  editions,  critical  writings,  sources,  origin 
textual  relationships  and  various  other  problems  connected 
with  the  Penitential'S  in  early  Great  Britain  and  Ireland.1* 
In  particular,  it  is  to  be  hoped  that  we  have  made  contribu¬ 
tions  of  some  value  in  clarifying  obscure  questions  regarding 
the  Penitential  of  David  and  the  early  Welsh  synods ; 2  the 
so-called  Canones  Wallici ;  3  the  connections  of  the  old-Irish 
treatise  De  Arrets 4  with  the  main  stream  of  penance;  the 
enforcement  of  penance  by  secular  laws  among  the  Welsh 
and  Irish;  J  the  influence  of  the  Canones  Hibernenses,  par¬ 
ticularly  of  the  Latin  De  Arrets;  6  the  authorship  of  the  Peni¬ 
tential  of  Vinnian  '  and  of  the  penitentials  of  pseudo-Bede 8 
I  and  II ;  and  as  regards  the  sources  for  the  Penitential  of 
Theodore.9 


1Pide  supra ,  chaps,  i  and  iv,  passim.  We  have  also  attempted  to 
provide  a  fairly  complete  guide  to  the  textual  materials  on  the  Peni- 
^entials  in  general ;  though  limits  of  space  have  necessitated  eliminating 
much  material  which  we  had  worked  up  on  this,  as  well  as  other 
opics. 

'Supra,  chap,  i,  sect.  9. 

1  Supra,  chap,  i,  sect.  9. 

4 Supra,  chap,  i,  sect.  10  and  chap,  iii,  sect.  4. 

s Supra,  chap,  i,  sect.  9. 

®  Supra k  chap  i,  sect.  10  and  chap,  iv,  sect.  1. 

'Supra,  chap  i,  Sect.  10. 

8 Supra,  chap,  iv,  sects.  4-5. 

9 Supra,  chap,  iv,  sect.  1 ;  also  chap,  i,  sect.  10,  under  "  Canones  Hiber- 
ienscs”,  “De  Arreis”  and  the  “  libellus  Scottorum.” 

555] 


197 


ENGLISH  PENITENTIAL  DISCIPLINE 


198 


[556 


As  regards  the  practical  influence  of  penance  and  of 
the  Penitentials,  in  their  direct  relationships  to  secular  morals 
and  the  like,  we  have  attempted  to  assemble,1  in  more  con¬ 
venient  form,  such  information  on  the  forms,2  administra¬ 
tion  3  and  influence  of  penance  as  would  throw  light 4  upon 
its  effect  in  the  period  chosen  and  elucidate  the  interpreta¬ 
tion  of  the  Penitentials.  More  original  work  has  been  done 
in  demonstrating  the  existence  and  importance  of  public 
penance  in  pre-Norman  England; 5  in  correcting  the  errone¬ 
ous  impressions  prevalent  regarding  the  wholesale  laxness 
of  the  commutation  6  system,  as  seen  in  the  Penitentials ;  in 
proving  that  the  commutation  system  iin  Western  Europe 
arose  among  the  Irish,7  rather  than  among  the  Anglo- 
Saxons  8  and  that  its  chief  evil  lay  in  discriminating  in  favor 
of  the  wealthy : 9  in  correcting  certain  misuse  of  penitential 
materials  by  authorities  10  on  the  history  of  various  institu¬ 
tions  in  the  pre-Norman  period ;  and  in  various  matters  11  of 
detail.  In  chapter  v,  we  have  endeavored  to  present  a  fuller, 
more  accurate  history  of  secular  laws  requiring  or  enforcing 

I  Supra,  especially  chaps,  ii,  iii  and  vi.  In  some  cases  we  have  fol¬ 
lowed  the  standard  authorities  but  in  many  instances  we  have  used  the 
Penitentials  directly. 

'Vide  chap,  ii,  sect.  1;  also  chap,  iii,  sect.  2. 

* Supra  chap,  ii,  sect.  6,  and  chap,  iii,  passim. 

4E.  g.  as  showing  the  practical  effect  of  penance  or  as  explaining  tech¬ 
nical  terms. 

5  Vide  chap,  iii,  sects.  2-3,  and  6-8,  inclusive. 

*Vide  chap,  ii,  sect.  4  and  chap,  iii,  sects.  4,  9. 

T  Vide  chap,  iii,  sect.  4. 

8  As  previously  believed ;  znde  supra,  for  references. 

*  Vide  chaps,  ii  and  iii,  under  commutations. 

10  See  index,  under  the  works  of  Fischer,  Hanna,  Thurston,  Lingard, 
Cutts  and  others;  also  under  Essays  in  Anglo-Saxon  Law. 

II  Vide  supra,  passim. 


CONCLUSION 


557] 


199 


penance  1  in  the  pre- Norman  period  than  was  previously 
available  and  to  stress  the  very  great  need  for  a  strong  system 
of  discipline  to  supplement  the  weak,2  secular  laws.  While 
the  final  chapter  has  been  devoted  to  showing,  in  detail,  how" 
the  provisions  of  the  Penitentials  served  as  powerful  means 
to  help  supply  such  a  discipline  by  penalising  feuds  3  and 
contempt  '4  for  secular  laws;  by  severe  punishments  for  var¬ 
ious  kinds  of  perjury,5  and  by  heavy  penances  6  for  crimes 
which  the  secular  laws  punished  too  lightly. 

From  the  previous  chapters  it  will  readily  be  seen  that  the 
penitential  system  and  secular  laws  mutually  assisted  each 
other  in  punishing  criminals  and  in  working  for  the  pre¬ 
servation  of  law  and  order.  The  secular  laws,  on  their  part, 
offered  substantial  aid  to  the  introduction  and  enforcement 
of  confession  and  penance  by  providing  severe  penalties  for 
their  neglect  and  by  alleviating  secular  penalties  for  those 
who  performed  them.  On  the  other  hand,  the  Church 
severely  penanced  those  who  neglected  or  resisted  the  en¬ 
forcement  of  secular  penalties ;  it  insisted  upon  respect  for 
the  procedure  of  the  secular  courts  ;  and,  in  many  ways  it 
held  up  to  detestation  crime  and  the  criminal.  The  chief 
media  of  the  Church  for  this  important  work  were  penance 
and  the  Penitentials. 

Finally,  we  can  find  nothing  that  better  summarises  the 
potent  influence  for  good  exercised  by  the  Penitentials  than 
the  graphic  words  of  H.  C.  Lea : 7 


1  Vide  loc.  cit.,  sect.  4. 

'Vide  chap,  v,  sects.  5-7,  inclusive. 

'Vide  chap,  vi,  sect.  1. 

4  Vide  chap,  vi,  sect.  2. 

*  Vide  chap,  vi,  sect.  3. 

*  Vide  chap,  vi,  sect.  4. 

7 bide  Lea,  Auricular  Confession  II,  106-107.  The  footnotes  have 
been  added  by  the  present  writer. 


200 


ENGLISH  PENITENTIAL  DISCIPLINE 


[55S 

“  Crude  and  contradictory  as  were  the  Penitential'S  in 
many  things,  taken  as  a  whole  their  influence  cannot  have 
been  but  salutary.  They  inculcated  in  the  still  barbarian 
populations  lessons  of  charity  and  lovingkindness,  of  for¬ 
giveness  of  injuries  and  of  helpfulness  to  the  poor1  and  to 
the  stranger  as  part  of  the  discipline  whereby  the  sinner 
could  redeem  his  sins.  Besides  this,  the  very  vagueness  of 
the  boundary  between  secular  and  spiritual  matters  enabled 
them  to  instill  ideas  of  order  and  decency  and  cleanliness 
and  hygiene 2  among  the  rude  inhabitants:  of  northern 
Europe.  They  were  not  confined  to  the  repression  of 
violence  and  sexual  immorality  and  the  grosser  offences,  but 
treated  as  subjects  for  penance  excesses  in  eating  and  drink¬ 
ing,  the  consumption  of  animals  dying  a  natural  death  or 
of  liquids  contaminated  by  animals  fallen  into  them ;  the 
promiscuous  bathing  of  women  and  children  was  prohibited, 
and  in  many  ways  the  physical  nature  of  man  was  sought 
to  be  subordinated  to  the  moral  and  spiritual.  It  was  no 
small  matter  that  the  uncultured  barbarians  should  be  taught 
that  evil  thoughts  and  desires  were  punishable,  as  well  as 
evil  acts.  Such  were  their  tendencies,  and  though,  at  the 
present  day,  it  is  impossible  to  trace  directly  what  civilising 
influence  they  may  have  exercised  on  the  peoples  subjected 
to  them  ....  they  exercised  (such)  influence.” 

1  By  giving  alms,  etc. ;  vide  chaps,  ii,  iii,  under  commutations. 

*  Many  such  provisions  were  due  to  “  taboo.” 


APPENDIX 


I.  Abbreviations  and  Dates  for  Sources 

Following  is  a  tabulated  list  of  the  abbreviations  used  and  of  the 

dates  or  origin  of  the  chief  sources.  Further  details  will  be  found 

supra,  in  chaps,  i,  iv  and  v,  on  the  literary  history  of  the  Penitentials 

and  on  the  secular  laws,  respectively. 

a.  for  the  penitentials 

i.  Of  those  that  were  used  in  pre-N orman  England. 

P.  Bede — Penitential  of  Bede — eighth  century — English  origin. 

Ps.  Bede  or  Ps.  Bede  II — the  later,  Frankish  Penitential  II  of  the  ninth 
century,  as  distinct  from  pseudo-Bede  I,  edited  by  Albers.  Peni¬ 
tential  II  is  published  by  Wasserschleben,  Schmitz,  et  al. 

Can.  Edg. — Canons  of  Edgar  or  Canones  Eadgari — a  pseudonymous 
work  by  an  English  canonist  of  the  tenth  century. 

Can.  Greg. — Canones  Gregorii — a  Frankish  pseudo-Theodore  of  late 
origin — a  variant  compilation  akin  to  the  Capitula  Theodori,  infra. 

Cap.  Dach. — the  Capitula  Theodori  or  Capitula  Dachcriana  edited  by 
D’Achery — of  late  Frankish  origin,  (ioth.  century?). 

Conf.  Ps.  Egb. — the  Confessional  of  Egbert  or  Confcssionale  Egberti 
— a  pseudonymous  translation  into  Anglo-Saxon  of  a  Latin  peni¬ 
tential  of  Frankish  origin — probably  later  than,  the  eighth  century, 
though  the  older  portion  may  ibe  by  Egbert  of  York,  (A.  D.  732- 
766). 

P.Egb. — the  Penitential  of  Egbert  of  York. 

P.Ps.Egb. — Penitential  of  pseudo-Egbert,  of  which  Books  i-iii,  in¬ 
clusive,  are  probably  an  Anglo-Saxon  translation  of  the  ninth 
century,  Frankish  code  of  Halitgar;  while  Book  iv  may  be  by 
Egbert. 

P.Mart. — Pocnitentiale  Martcnianum — the  edition  of  the  Capitula  Theo¬ 
dori  of  Martene,  increased  to  one  hundred  sixty-eight  chapters  and 
including,  among  the  last  chapters,  material  by  the  Iro-Scottish 
Adamnan,  as  well. 

P.  Tk— the  genuine  Penitential  of  Theodore,  probably  edited  by  a 
Northumberian  scholar  in  the  late  eighth  century. 

Ps.  Th. — the  Penitential  of  pseudo-Theodore,  distinct  from  others  of 
the  Theodore-cycle  above ;  probably  Frankish  and  of  the  ninth 
century;  published  as  Theodore’s  by  earlier  editors. 

559] 


201 


202 


APPENDIX 


[560 


2.  OF  CELTIC  ORIGIN 

P.  Columb. — the  Penitential  of  Columban,  of  the  late  sixth  century — 
Continental. 

P.  Cumm. — the  earlier,  genuine  Penitential  of  Cummean — seventh  cen¬ 
tury,  Continental. 

Ps,.  Cumm.  or  Exc.  Cumm. — the  spurious  Excarpsus  Cummeani  of  the 
ninth  century — 'Continental. 

P.Dav. — the  Welsh  Penitential  of  David — excerpts  from  a  larger  work 
written  by  him  in  the  last  half  of  the  sixth  century. 

P.  Gild. — By  Gildas,  written  in  Brittany,  ca.  A.  D.  570. 

P.  Vinn. — by  an  unidentified  Vinnian,  in  Ireland,  in  the  first  half  of 
the  sixth  century. 

Syn.  Br.  or  Syn.  Brev. — The  Welsh  Synod  of  Brevi. 

Sin.  Hibern. — Sinodus  Hibernensis — probably  before  the  seventh  or 
eighth  centuries  in  Ireland;  vide  chap,  iii,  under  Canones  Hiber- 
nenses. 

Syn.  Viet. — Sinodus  Luci  Victoriae,  a  Welsh  synod  under  David,  in 
the  same  year  as  that  of  Brevi. 

3.  OTHER  CONTINENTAL  PENITENTIALS  CErED 

P.  Eccl.  Germ. — Poenitcntiale  Ecclesiarum  Germaniae ,  a  late  one  used 
in  Germany  and  by  Burchard  of  Worms  (?). 

P.  Halitg. — that  by  Halitgar  of  Cambrai,  (d.  831). 

P.  Mersebg. — Poenitcntiale  Merseburg ense,  published  by  Wasserschle- 
ben  and  by  Schmitz ;  of  late  date. 

P.  Rotn.  or  Ps.Rom. — the  spurious  Roman  Penitential  of  the  seventh 
century  or  the  beginning  of  the  eighth;  Frankish. 

Notes:  As  regards  the  Capitula  Theodori  or  Copitula  Dacheriana  of 
D’Achery,  ( Spicilegium  IX),  Wasserschleben  reprints  them  as  one- 
hundred  twenty  Capitula  Dacheriana;  Labbe  and  Cossart,  Concilia, 
(Paris,  1875),  VI,  originally  published  in  1677,  reprints;  as  also  the 
late  edition  of  D’Achery  edited  by  F.  J.  De  la  Barre,  (Paris,  1 772), 
with  the  notes  of  Baluze  and  of  Martene. 

The  Poenitentiale  Martenianum  of  Martene  has1  one-hundred  sixty- 
eight  chapters  based  on  the  Capitula  Theodori,  supra,  the  last  twenty 
being  Adamnan’s.  Vide  supra,  chap,  iv,  under  the  individual  codes. 

Other  Capitula  Theodori  of  Petit  and  Favier  are  Frankish,  of  late 
origin — a  collection  of  fourteen  chapters  edited  as  Theodore’s  by  Petit, 
(Paris,  1677),  plus  sixty  chapters  communicated  to  Petit  by  Nicholas 
Favier.  The  work  of  fourteen  chapters  is  P.TH.,Lib.  ii ;  to  which 
Petit  adds  those  of  D’Achery,  ut  supra.  It  is  claimed  by  several 
scholars  that  much  of  it  is  borrowed  from  the  pseudo- Theodore. 
Vide  H.  and  S.  Ill,  175;  Schmitz  I,  512-513;  Hormann,  in  Fitting’s 


APPENDIX 


203 


56l] 

Melanges  II,  passim;  Wasserschleben  16;  Fournier,  in  Nouvelle  revue 
de  I’histoire,  etc.,  XXIII,  46;  Seckel,  in  Neues  Archiv  296-297,  32 8-329, 
326.  Some  of  it  is  translated  into  Anglo-Saxon,  in  Thorpe,  Ancient 
Laws,  etc.  307. 

The  long  preface  to  the  Penitential  of  Theodore  is  written  in  par¬ 
ticularly  barbarous  Latin,  but  is  valuable  for  hints  at  the  sources  from 
which  the  Penitential  was  composed.  The  title  of  the  Penitential 
varies  in  different  MSS.,  but  all  agree  in  ascribing  its  authorship  to 
Theodore.  Vide  Schmitz  I,  512;  and  H.  and  S.  Ill,  175  and  passim. 
Of  the  two  books  composing  the  Penitential  of  Theodore,  the  first  is  a 
penitential  in  the  strict  sense,  while  the  second  treats  other  matters  of 
canon  law.  Book  II  is  often  found  separately  but  most  authorities  re¬ 
ject  Schmitz’  view  that  it  is  of  separate  authorship;  cf.  Schmitz  II, 
passim. 

Penance  and  confession  are  frequently  mentioned  in  other  sources! 
for  the  Irish,  Welsh  and  English  churches  in  the  pre-Norman  period. 
References  are  found  in  the  lives  of  the  saints;  in  the  ecclesiastical 
histories,  especially  that  of  Bede;  in  the  decisions  of  councils;  in  the 
sermons,  correspondence  and  other  writings  of  ecclesiastics ;  in  the 
penitential  codes ;  in  the  pontificals  or  service-books  of  archbishops ; 
and  in  the  secular  laws.  Modern  scholars  have  used  much  of  this 
material  but  have  neglected  much  valuable  evidence  from  the  secular 
laws  and  from  the  pontificals;  while  modern  writers  have  also  passed 
by  much  valuable  material  in  the  Welsb.  Vitae  and  have  often  used 
as  genuine  penitentials  that  were  spurious.  Vide  supra,  under  the  in¬ 
dividual  sources  listed  above  and  infra,  for  more  definite  criticisms, 
under  secondary  works. 

2.  for  the  anglo-saxon  laws;  (after  Liebermann,  Gesetze ) 

Alf. — Laws  of  Alfred,  ( ca .  A.  D.  871  or  890-899). 

I  Ath. — Laws  of  Athelstan — Tithes,  (ca.  925-936) • 

II  Ath. — Laws  of  Athelstan — At  Greatley,  (ca.  925-935)  • 

III  Ath. — Laws  of  Athelstan — Kent’s  Letter,  (928-938). 

IV  Ath. — Laws  of  Athelstan — At  Thunders  field,  (929-939). 

V  Ath. — Laws  of  Athelstan — At  Exeter,  (9 27-937)* 

VI  Ath. — Laws  of  Athelstan — Indicia  Civitatis  Lunduniae,  (930-94°) • 

I  Cn.  or  Cm.  Eccl .• — Cnut,  Ecclesiastical,  (ca.  Dec.  25,  1027-1034). 

II  Cn.  or  Cn.  Sec. — Cnut,  Secular. 

Cn.  1020 — Ordinance  of  that  date. 

Cn.  1027 — Ordinance  of  that  date. 

I  Edw. — Laws  of  Edward  or  Eadward  the  Elder,  (901-924). 

II  Edw. — The  same,  At  Exeter,  (924-925). 

EGu. — Treaty  of  Edward  with  Guthrum,  (ca.  Nov.  921-938). 

I  Edg. — Edgar’s  Hundredgemot,  (946-961). 


204 


APPENDIX 


[562 


II  Edg. — Edgar,  At  Andover,  (959-962). 

III  Edg. — Edgar,  At  Andover ,  Secular,  (same  dates). 

IV  Edg. — Edgar,  At  Wihtbordestane,  (962-963). 

Legg.  Hen.  I — pseudonymous  Leges  Henrici  Primi — the  work  of  an 
Anglo-Saxon  canonist  of  the  tenth(  ?)  century. 

I  Ethr. — Ethelred,  At  Woodstock ,  (980-10x3). 

II  Ethr. — His  Treaty  With  Olaf  the  Dane,  ( ca .  991). 

III  Ethr. — At  Wantage,  (981-1012,  99 7?). 

IV  Ethr. — At  London,  (991-1002). 

VI  Ethr. — Eanham,  (1008-1011  ?). 

VII  Ethr. — At  Bath ,  (992-1011). 

VIII  Ethr. — Law  passed  after  February,  1014. 

II.  Bibliography 

For  convenient  reference,  the  present  writer  has  arranged  in  two 
categories  the  books  used  by  him  or  valuable  for  their  materials  on 
the  chief  subjects  treated  in  this  book.  A.  Ecclesiastical  Materials  will 
include  the  chief  works  used  for  chapters  i-iv,  inclusive,  and  for 
chapter  vi.  While  B.  Secular  Materials  will  comprise  those  used  or 
of  special  value  for  chapter  v,  in  particular.  The  lists  are  not  in¬ 
tended  to  be  complete,  an  impossible  task  in  such  a  broad  held  for  a 
work  of  this  narrow  scope ;  but  merely  to  include  the  works  used  and 
others  of  outstanding  importance. 

A.  ECCLESIASTICAL  MATERIALS 

i.  Sources.  Cf.  supra,  “  Appendix,”  I,  for  notes  on  the  use  of. 
penitential  evidence ;  also,  infra,  under  secondary  writers.  Special 
editions  of  individual  penitentials  are  described  more  fully  supra,  chaps, 
i,  iv. 

a.  Other  than  Special  Editions  of  the  Penitentials 

*1.  D'Achery,  L.,  Veterum  aliquot  Scriptorum  qui  in  Galliae  Biblio- 
thecis  delituerant,  maxime  Benedietorum  Spicilegium.  (3  t., 
Paris,  1672  and  1723;  earlier  ed.,  13  t.,  i655'-i677). 

2.  Basnage,  vide  Canisius,  infra. 

3.  Canisius,  H.,  Antiquae  lectiones.  (2  t.  in  1,  Ingolstadt,  1604;  21 
t.,  Amsterdam,  1725),  especially  II. 

**4.  Haddan,  A.  W.,  and  Stubbs,  W.,  Councils  and  Ecclesiastical  Docu+ 
ments  relating  to  Great  Britain  and  Ireland.  (3  vols.,  Oxford, 
1869-1878). 

5.  Harduin,  J.,  Conciliorum  collcctio.  (12  vols.,  Paris,  1715). 

6.  Bede,  the  Venerable,  HE=Historia  ecclesiastica,  (ed.  Chas. 
Plummer,  Oxford,  1896). 

7.  Mai,  A.,  Scriptorum  veterum  nova  collectio.  (10  t.,  Rom.,  1841). 


APPENDIX 


205 


563] 

8.  Mai,  A.,  Spicilegium  romanum,  (Rom.,  1841). 

9.  Mansi,  J.  B.,  Sacrorum  concilorum  collectio.  (31  t.,  Florence, 
etc.,  1759-1798)  ;  re-issued  and  supplemented  by  H.  Welter, 
(Paris,  etc.,  1901  et  scqq.) ;  “Introduction  (1903). 

10.  Maassen,  F.,  Concilia,  in  MGH.,  I,  (Hannover,  1839). 

11.  Martene,  E.,  and  Durand,  V.,  Ampl.  Coll.—Peterum  scriptorurn 
et  monumentorum  amplissima  collectio.  (9  t.,  Paris,  1724-1733). 

12.  The  same,  Thesaurus  novus  anccdotorum.  (5  t.,  Paris,  1717). 

13.  MGH.-=Monumcnta  Gcrmaniac  historica ,  ed.  Pertz,  G.  H.,  et  al. 
(t.  i-xv,  pt.  i,  Hannover,  1826-1913).  Auctores  antiquissimi,  (t. 
i-xv,  pt.  i,  Berlin,  1877-1913). — Epistolae,  (t.  i-viii,  Berlin,  1877- 
1912). 

14.  Migne,  J.  P.  MPL.  Patrologia  latina.  (221  t.  in  222,  Paris,  1844- 
1864). 

15.  Spelman,  H.,  Concilia  ....  in  re  orbis  Britannici.  (2  t.,  Lon¬ 
don,  1639-1664).  Cf.  Wilkins,  Thorpe,  infra. 

*17.  Wilkins,  D.,  Concilia  Magnae  Britanniae  et  Hiberniae,  A.  D.  446- 
1718.  (4  t.,  London,  1737). 

**18.  Williams,  Hugh.,  Gildas=zhis  edition  of  Gildae  Opera.  ( Cym - 
modorion  Soc.,  Record  Series,  no.  3,  in  iii  pts.,  London  1899- 
1901). 

b.  Editions  of  the  Penitentials 

**r.  'Schmitz,  H.  J.,  Die  Bussbiichcr  u.  die  Buszdisciplin  der  Kirche, 
(2  Bde.,  Mainz,  1883)  and  his  Bussbucher  a,  d.  Bussvcrahren, 
(1898). 

**2.  Wasserschleben,  F.  W.  H.,  Die  Bussordnungen  der  abendlandis- 
chen  Kirche,  (Halle,  1851). 

**3.  For  special  editions  of  individual  penitentials  and  for  other  older 
editions,  critical  -writings,  etc.,  vide  supra,  chaps,  i,  iv. 

**4.  Friedberg,  E.,  Aus  den  deutschcn  Bussbiichern,  (1868).  An  ex¬ 
cellent  secondary  discussion  containing,  also,  good  illustrative 
extracts. 

**5-  Cf.  Haddan  and  Stubbs,  supra,  no.  4,  of  a. 

2.  Secondary. 

a.  Bibliographical  Guides 

**1.  Gross,  C.,  Sources  and  Literature  of  English  History,  (London, 
1900;  revised  ed.,  1915). 

2.  Hardy,  T.  D.,  Descriptive  Catalogue  of  Materials  Relating  to  the 
History  of  Great  Britain  and  Ireland,  ( Rolls  ser.,  London,  1862- 
1871 ;  3  vols.  in  4  pts.). 

3-  Manitius,  M.,  Gcschichte  der  lateinischen  Literatur  des  Mittelal- 
ters,  Abt.  1.  (vol.  ix,  pt.  ii  of  Iwan  v.  Muller,  Handbuch  der 
klassischcn  Altertumswissenschaft,  Munchen,  I911)-  Devotes 
scant  attention  to  the  Penitentials. 


206  appendix  [564 

*4.  Chevalier,  U.,  Repertoire  des  sources  historiques  du  moyen  age. 
— Bio-bibliographique.  (Paris,  1877-1886).  2  t. ;  revised  ed., 
1903,  1905-1907,  2  pts). — Topo-bibliogruphique,  (2  t.,  in  6  pts., 
Monthelliard,  1894-1903).  Has  a  useful,  full  list  of  the  older 
material  on  the  Penitentials  and  penance,  sometimes  supplement¬ 
ing  the  material  in  Gross.  But  Chevalier’s  guide  must  be  used 
with  care,  as  many  texts  are  wrongly  ascribed,  especially  peni¬ 
tentials. 

5.  Potthast,  A.,  Bibliotheca  historica  medii  aevii:  Wegweiser  durch 
die  Geschichtswerke  des  europdischen  Mittelalters,  bis  1500.  (1 

Bd.  and  supplement,  Berlin,  1862-1868;  2d.  ed.,  2  Bde.,  (1896). 

**6.  Jahresberrichte  der  Gerschichtswissenschaft  im  Auftrage  der  his- 
torischen  GesellSchaft  zu  Berlin.  (Berlin,  1878-,  1880-).  Very 
valuable  for  recent  material.  But  it  needs  supplementing,  on  the 
Penitentials  and  penance,  by  the  opp.  citt.,  infra,  and  from  the 
indices  to  the  periodicals  on  theology,  etc.,  infra. 

7.  Theologischer  Jahresbericht,  ed.  H.  Holtzmann  u.  G.  G.  Kruger, 
(Freiburg,  1  B.  u.  Brunswick,  1882-)  On  the  field  of  the  Peni¬ 
tentials  and  penance,  the  references  are  very  scanty  and  inade¬ 
quate. 

*8.  Bibliographie  der  dcutschen  Rezensioncn.  (Leipzig,  1901-).  Has 
excellent  notices  that  supplement  no.  7.  Supplements  the  earlier 
Bibliographie  der  Zeitschriften. 

9.  Repertoire  bibliographique  des  revues  francaises.  ed.  D.  Jordell, 
(Paris,  1897-1901). 

*10.  (Richardson.  Periodical  Articles  on  Religion.  Somewhat  too 
general  for  our  thesis,  though  it  has  useful  notices  on  recent 
works  on  the  Penitentials  as  related  to  paganism,  food  prohibi¬ 
tions,  etc. 

b.  General  Aids:  Encyclopedias,  dictionaries,  manuals,  etc. 

1.  Bumpus,  Jno.  Dictionary  of  Ecclesiastical  Terms.  (London,  1910). 

**2.  Catholic  Encyclopedia— Cath.  Ency.  (15  vols.,  New  York,  1907 
et  seqq.). 

**3.  D C A. =Dict ionary  of  Christian  Antiquities,  etc.,  ed.  W.  Smith 
and1  S.  Cheetham.  (2  vols.,  London,  1875-1880).  Has  an  ex¬ 
cellent  general  survey  of  the  penitential  field  for  its  time  and 
even  now  more  reliable  than  anything  else  in  English,  except  the 
few  critical  editions. 

*4.  Dictionary  of  Christian  Biography,  etc.,  ed.  W.  Smith  and  H. 
Wace.  (4  vols.,  London,  1877-1887).  Later  abridged  in  re¬ 
vision  by 

5.  Wace,  H.,  and  Piercy,  W.  C.  (1  vol.,  London,  1911). 


APPENDIX 


207 


565] 

6.  DNB .^Dictionary  of  National  Biography,  ed.  Leslie  Stephen  and 
Sidney  Lee.  (6  vols.,  London,  1885-). — Supplement,  (3  vols., 
1901). — Errata,  (1904). — New  ed.,  22  vols.,  (1908-1909). — Second, 
Supplement,  (3  vols.,  1912). 

**7.  Dictionaire  d’archeologie  chretienne  et  de  liturgie.  ed.  F.  Cabrol 
et  H.  Leclercq.  (Paris,  1905- ). 

**8.  Dictionnaire  de  theologie  catholique.  ed.  A.  Vacant  et  E.  Mauge- 
not.  (6  t.,  Paris,  1909-). 

9.  Encyclopedia  Brittanica,  nth.  ed.,  (London,  1910-1911). 

**10.  Herzog,  J.,  and  Hauck,  J.  G.,  Realencyklopadie  fur  protestantische 
Theologie,  u.s.w.  (Leipzig,  1896-1913).  Much  fuller,  especially 
on  penance  and  the  Penitentials,  than  the  abridged  English 
translation. 

II.  The  New  Schaff -Herzog  Encyclopedia  of  Religious  Knowledge. 
Revised  by  S.  M.  Jackson.  (New  York  and  London,  1908  et 
seqq.,  12  vols.). 

**12.  KLex.—Kirchenlexikon  oder  Encyclopadie  der  katholischen 
Theologie ,  u.s.w.  (10  Bde.,  Freiburg,  1880-1895).  Far  better 
than  no.  2,  supra,  ed.  Hergenrother-Kaulen. 

**13.  Du  Cange,  C.  D.,  Glossarium  mediae  et  indmae  Latinitatis.  ed, 

G.  A.  L.  Henschel,  (7  vols.,  Paris,  1840-1850).  Also  d’Arnis,  W. 

H.  M.,  (7  vols.,  Paris,  1858),  with  some  additions,  as  Lexikon 
Manuale  ad  Scriptores  Mediae  et  Indmae' Latinitatis.  (Reprinted, 
1866).  Leopold  Favre,  ed.  in  10  vols.,  (Niort,  1883-1887).  Chas, 
Schmidt,  Petit  supplement  au  dictionnaire  de  Du  Cange.  (Stras- 
sburg,  1906). 

On  canon  law  in  the  period  of  the  Penitentials  treated,  the  following 

works  have  been  found  of  particular  value: 

**14.  The  essay  by  W.  Stubbs,  in  Select  Essays  in  Anglo-American 
Legal  History  1,  248-288,  (Boston,  1907-1909). 

**15.  Makower,  Felix,  Die  Verfassung  der  Kirche  von  England. 
(Berlin,  1894).  Cited  from  the  English  translation,  The  Con¬ 
stitutional  History  and  Constitution  of  the  Church  of  England, 
(London  etc.,  1895). 

**16.  Sagmiiller,  J.  B.,  Lehrbuch  des  katholischen  Kirchenrechts.  3rd. 
ed.,  (2  vols.,  Freiburg,  i.  B.,  1914), —KR.  Very  valuable  for 
bibliographies  on  penitential  matters. 

**17.  Scherer,  J.  B.,  Lehrbuch  des  kanonischen  Rechts. 

**18.  Maassen,  Fr.,  Geschichte  der  Quellen  u>.  der  Literatur  des  kanon¬ 
ischen  Rechts.  (Gratz,  1870).  Still  valuable  for  information  on 
MSS.  of  the  Penitentials,  though  it  needs  checking  from  recent 
critical  works. 

*19.  Spittler,  L.  F.,  Sdmtliche  Werke,  I-II,  have  suggestive  material. 


208 


APPENDIX 


[566 

20.  The  material  on  the  Penitentials  is  very  poor  in  the  well-known 
manuals  of  P.  Hinschius,  (1869-1897)  ;  H.  Gerlach,  (1890)  ;  G. 
Phillips,  (1855-1857,  1893)  ;  and  E.  L.  Richter,  (1886). 

The  following  works  on  church  history: 

*21.  Alzog,  J.,  Handbuch  dcr  universal  Kirchengeschichte.  8th.  ed., 
(Mainz,  1866,  2  vols. ;  Eng.  transl.  by  F.  J.  Palbisch  and  T. 
S.  Byrne,  in  3  vols.,  Cincinnati,  1903). 

*22.  Funk,  F.  X.,  Kirchengeschichte=KG.,  Eng.  transl  from  5th,.  ed 
iby  L.  Cappadelta,  in  2  vols.,  (London  and  St.  Louis,  1910). 

*23.  Gieseler,  J.  C.  L.,  Lehfbuch ,  u.  s.  w.  Eng.  transl.  from  the  4th. 

German  ed.  by  S.  Davidson,  with  notes.  (New  York,  1857). 

*24.  Robertson,  J.  C.,  History  of  the  Christian  Church,  has  unusually) 
good  summaries  of  the  social  influence  of  the  Penitentials.  4th. 
ed.  (4  vols.  in  5,  London,  1867). 

**25.  Schaff,  P.,  History  of  the  Christian  Church.  3rd.  ed.,  (7  vols.,  New 
York,  1889),  with  extracts  from  the  Penitential  of  Theodore,  in' 
translation. 

**26.  Ayer,  J.  C.,  Sourcebook  of  Ancient  Church  History.  (New  York, 
1913),  PP-  624-630,  contains  extracts  from  the  Penitentials  of 
Vinnian,  Theodore  and  Bede. 

Note: — Other  standard  works  on  church  history — e.g.  those  by 
Hauck,  Herzog,  Moeller,  Newman,  Kraus,  Fisher — do  not  possess  much 
value  on  the  Penitentials  or  omit  discussion  of  them  entirely.  In  gen¬ 
eral,  the  manuals  on  church  history  either  neglect  the  topic  almost  en¬ 
tirely  or,  even  with  the  preferred  works  starred  above,  use  the  texts 
uncritically  and  draw  too  general  conclusions  from  insufficient  data. 
Vide  supra,  chaps,  ii,  iii  on  commutations,  in  particular. 

*27.  Bright,  W.,  Lectures  on  the  Early  English  Church.  (Oxford, 
1878;  3rd.  ed.,  1897). 

*28.  Hunt,  W.,  The  English  Church,  A.  D.  597-1066.  (London,  1899). 
29.  Lingard,  J.,  History  and  Antiquities  of  the  Anglo-Saxon  Church. 
(2  vols.,  1845;  reprinted,  1858).  Valueless  in  the  penitential  field 
but  still  quoted  by  some  Catholic  authorities. 

**30.  Cutts,  E.  L.,  Parish  Priests  and  Their  People  in  the  Middle  Ages. 
(London,  1881).  Valuable  on  penance  from  the  Protestant 
viewpoint,  but  omits  references  and  neglects  the  Penitentials. 
**31.  Bridgett,  T.  E.,  History  of  the  Holy  Eucharist  in  Great  Britain. 
Very  valuable  for  the  Catholic  viewpoint,  though  a  little  anti¬ 
quated  on  points  of  authorship.  Uses  Penitentials  insufficiently. 
(2  vols.,  London,  1881 ;  later  ed.,  1  vol.,  1908). 

**32.  Lea,  H.  C.,  History  of  Auricular  Confession  and  Indulgences. 
Still  valuable  for  the  Protestant  interpretation,  though  it  de¬ 
cidedly  needs  checking  with  more  recent  works  as  regards  pen- 


567] 


APPENDIX 


209 

ance,  the  authorship  of  individual  penitentials,  materials  from  the* 
secular  laws  and  other  points. 

*  "33-  Hefele,  C.  J.  von,  Conciliengeschichte.  (7  vols.,  Freiburg  i.  B., 
1855-1874)  2d.  ed.,  6  vols.,  1873-1890;  continued  by  J.  Hergen- 
rother,  vols.  viii-ix,  1887-1890;  Eng.  transl.  .by  R.  W.  Clark, 
History  of  the  Christian  Councils,  vols.  i-v,  Edinburgh,  1871-' 
1896)-  But  particularly  H.  Leclercq,  Histoire  des  conciles,  (vols. 
i-v,  in  9  vols.,  with  corrections,  notes  and  supplementary  material. 
(Paris,  1907-). 

Among  others,  the  following  on  the  history  of  penance: 

**34-  Batiffol,  P.,  Etudes  d’histoire  .  .  .  .  et  de  theologie  positive, 
(Paris,  1902). 

**35.  Binterim,  A.  J.,  Denkwiirdigkeiten  der  katholische  Kirche,  (Mainz, 
1825/-1847),  as  cited. 

36.  Brat,  Les  livres  penitentiaux  et  la  penitence  tariff ee,  (Brignals, 
1910). 

**37.  Funk,  F.  X.,  Kir cheng eschtliche  Abhandlungen  u.  Untersuchungen, 
(Paderborn,  1897),  especially  vol.  i. 

**38.  Kliefoth,  Liturgische  Abhandlungen ,  2  vols.,  (1881). 

*39.  Lepicier,  A.,  History  of  Indulgences.  (Eng.  transl.,  London,  1906). 

*40.  Morinus  or  Morin,  J.,  Commentarius  hist,  de  disciplina  poeniten- 
tiae,  (Paris,  1651). 

**41.  Rauschen,  G.,  Eucharistic  u.  Buszsakr ament  in  den  ersten  sechs 
Jahrhunderten  der  Kirche.  (Freiburg  i.  B.,  1903;  Eng.  transl., 
1908). 

**42.  Kirsch,  P.  A.,  Zur  Gescliichte  der  katholischen  Bcichte.  (1902). 

**43-  Cf.  Loofs,  in  Leitpfaden  der  Dogmengeschichte,  passim.  ( 4te . 
Aufl.,  1906). 

*44.  O’Donnell,  M.  J.,  Penance  in  the  Early  Cfogrch.  (Dublin,  1908- 
an  enlarged  D.  D,  thesis). 

**45.  Watkins,  O.  D.,  Plistory  of  Penance,  (2  vols.,  London,  1920). 
A  very  valuable  collection  of  texts  on  penance,  with  good 
sketches  of  the  history  of  that  institution.  Strongly  biased  in 
favor  of  a  Celtic  origin  for  private  penance.  Omits  some  im¬ 
portant  evidence  on  public  penance,  like  the  Pontifical  of  Egbert 
and  passages  from  the  Dialogue  of  Egbert,  besides  evidence  from 
the  Penitentials.  Has  extracts  from  the  codes  of  Theodore, 
Gildas,  David,  Vinnian,  Columban,  bearing  on  private  penance. 
Uncritical  as  regards  the  authorship  of  Vinnian’s  code,  which 
Watkins  assigns  to  Finnian  of  Clonard  without  definite  evidence. 

**46.  Seiffert,  F.,  Die  neueste  ....  Forschungen  iiber  Busse  u. 
Glaube.  (Berlin,  1896). 

*47-  Sirmond,  J.,  Hist,  poenitentiae  publicae.  (Paris,  1683). 


210 


APPENDIX 


[568 

48.  Frank,  Die  Buszdisciplin  der  Kirche,  (Mainz,  1867).  Very  tradi¬ 
tional  in  viewpoint  and  now  considerably  antiquated  ibut  much 
used  by  Schmitz,  in  the  latter’s  edition  of  the  Penitentials. 

Note:  For  penance  and  confession  in  the  early  English  Church,  there 
are  suggestive  articles  by  Hanna,  in  Cath.  Ency.  XI,  632-633  and  by 
Thurston,  in  The  Tablet,  (London,  Feb.  and  Mar.,  1905).  The  present 
writer  agrees  with  many  of  their  conclusions  but  wishes  to  note  the 
following  defects:  (1)  The  careless  use,  as  genuine,  of  spurious  texts 
from  the  unreliable  edition  of  the  councils  by  Wilkins,  particularly  for 
the  Penitential  of  pseudo-Egbert  and  for  the  pseudonymous  Canons 
of  Edgar;  (3)  the  uncritical  acceptance  and  use  as  genuine  of  the 
spurious  Excerptiones  Egberti  and  of  spurious  texts  of  the  Penitential 
of  Columban ;  (3)  the  insufficient  use  and  treatment  of  materials  from 
the  Penitentials ;  (4)  similar  neglect  of  recent  secondary  materials  on 
public  penance  and  on  penance  in  the  Celtic  Church;  (5)  uncritical  use 
of  materials  from  the  Anglo-Saxon  Laiws  from  antiquated  editions; 
(6)  important  omissions  from  the  secular  laws  of  the  Anglo-Saxons, 
Welsh  and  Irish;  (7)  omission  of  important  matter  from  the  ponti¬ 
ficals.  Evidence  from  the  pontificals  has  been  very  generally  neglected 
by  many  modern  writers.  Vide  supra,  chap.  iii. 

A  more  complete  list  of  the  sources  for  early  English  penance  than 
that  given  in  the  article  by  Hanna,  cited  supra,  would  include  abundant 
references  in  the  lives  of  the  saints ;  the  decisions  of  councils ;  the 
ecclesiastical  histories;  the  sermons,  correspondence  and  homilies  of 
ecclesiastics ;  the  penitential  codes  ;  the  pontificals ;  and  the  secular  laws. 
In  particular,  one  should  add  to  Hanna’s  list  the  various  sets  of  Anglo- 
Saxon  homilies ;  the  correspondence  of  St.  Boniface ;  the  various  works 
of  Aelfric;  the  pontificials  of  Egbert,  Magdalen  College,  Canterbury, 
and  others;  the  acts  of  early  British  councils  from  the  better  editions 
by  Haddan  and  Stubbs  and  among  the  ecclesiastical  laws  in  Lieber- 
mann’s  Gcsetce:  the  Anglo-Saxon  Laws  from  Liebermann’s  edition; 
and  frequent  regulations  in  the  Penitentials. 

Tht  account  of  penance  in  England  in  Hasting’s  Encyclopedia  of  Re* 
ligion  and  Ethics  supplements  that  in  the  article  by  Hanna  in  some 
respects  but  is  open  to  much  the  same  criticisms.  In  particular,  it 
erroneously  regards  as  spurious  the  Dialogus  Egberti,  which  most 
scholars  now  consider  Egbert’s ;  and  considers  genuine  the  pseudony¬ 
mous  Excerptiones  Egberti.  See  these  works,  supra,  chap.  iii. 

As  regards  the  existence  and  extent  of  public  penance  from  the 
fifth  to  the  eleventh  centuries,  recent  writers  have  challenged  the  tradi¬ 
tional  views  that  public  penance  was  native  in  the  West  from  the 
beginning.  An  excellent  survey  of  the  new  and  old  views  is  to  be 
found  in  articles  by  Koch,  in  Historischcs  Jcthrbuch,  ( Gorres-Gesell - 
schaft,  1897,  1900),  and  in  Th.  0.y  (1903,  1904),  especially  the  first 
article,  pp.  481-482. 


APPENDIX 


211 


569] 

For  the  traditional  view:  Sirmond,  Historia  poenitentiae  publicae, 
(Paris,  1683),  especially  capp.  5,  10;  Frank,  Bussdisciplin ,  196  et  seqq., 
650  et  seqq.,  and  passim;  Schmitz  I,  34-35;  Ludwig,  in  AKKR.,  (1903), 
LXXXIII,  N.  F.,  VII,  pp.  219  et  seqq.,  (particularly  good). 

The  newer  views,  opposed  to  the  preceding,  believe  that  the  peniten¬ 
tial  stations  were  introduced  spasmodically  from  the  East;  that  publia 
penance  was  never  continuous  in  the  Western  Church;  and  that  it  sooni 
declined  there.  Vide  supra,  for  the  excellent  articles  by  Koch;  Funk, 
in  his  Kirclvengeschichtliche  Abhandlungen  I,  (1899),  196  and  384; 
also  in  KLex.  II,  j.  v.  “  Busse;  ”  Funk,  in  Th.  Q.,  (1886),  363  et  seqq.; 
a  modified  acceptance  of  the  thesis  of  Funk  and  Koch  by  Hergen- 
rother,  KG.,  (190 2),  I,  315,  418;  the  older  view  of  Binterim,  op.  cit. 
V,  ii,  371  et  seqq.,  368  et  seqq.  For  others,  pro  and  con,  vide  Jahres- 
berichte  passim,  particularly  IV,  (1902),  221. 

The  interpretation  of  the  terms  in  the  sources  on  public  penance 
often  is  very  ambiguous.  Sometimes  such  terms  involve  phrases  used 
in  the  Penitentials — e.  g.  the  meaning  of  such  terms  as  “  exterminabitur1 
ab  ecclesia,”  “ projiciatur  ab  ecclesia,”  etc.,  as  used  supra,  chap.  iii. 
The  articles  of  Koch,  Ludwig,  and  others,  supra,  possess  value  by  aid¬ 
ing  in  the  elucidation  of  such  phrases  in  the  Penitentials  and  other 
sources. 

As  regards  the  meaning  of  phrases  like  those  aibove,  some  valuable) 
work  has  been  done  to  ascertain  the  meaning  of  the  term  “  ecclesia  ”. 
Though  the  question  is  still  undecided,  phrases  in  this  usage  may  mean 
that  penitents  iwere  sometimes  excluded  from  the  church-building  for* 
a  time;  or  that  they  may  have  been  dismissed  for  a  part  of  the  ser¬ 
vice;  or  merely  that  they  were  cut  off  from  the  congregation’s  church) 
rights ;  or  that  they  remained  in  a  kind  of  vestibule.  Vide  Rauschen, 
op.  cit.  138,  140;  Batiffol,  Etudes  145-195;  Hergenrother,  KG.,  II,  313- 
314;  a  masterly  article  by  d’Ales,  in  RHE.,  (1906),  16  et  seqq.;  Schmitz) 
I,  28,  68,  71,  65,  91-92,  536,  641 ;  and  the  articles  in  the  preceding  para¬ 
graphs  ;  also  supra,  chap,  iii,  for  further  discussion  of  public  penance 
for  England. 


B.  ON  THE  SECULAR  LAWS 

i.  Sources  * 

**1.  Liebermann,  F.,  ed.,  Gesetce  der  Angelsachsen.  (3  vols.,  (Halle, 
1898-). 

**2.  F.  L.  Attenborough,  ed.  and  transl.,  Lazvs  of  the  Earliest  English 1 
Kings.  (Cambridge  University  Press,  1922).  The  first  English' 
edition  since  Thorpe’s  and  including  the  results  of  Liebermann’s 
work. 

**3.  Maitland,  F.,  Select  Pleas.  Vol.  i,  (London,  1889). 


212  APPENDIX  [570 

4.  Schmid,  R.,  Gcsetse  der  Angelsachsen  2d.  ed.,  enlarged.  (Leipzig, 
1858). 

*5.  Thorpe,  B.,  Ancient  Laws  and  Institutes  of  England.  ( Record 
Commission ,  London,  1840,  used  in  1  vol.,  fol.  ed.).  Still  useful 
for  portions  absent  in  other  editions,  particularly  for  hisi  "  Monu¬ 
ment  a  Ecclesiastical  Later  editions  are  preferred  for  the  texts 
included  by  him,  when  they  are  available,  as  his  texts  are  some¬ 
times  poor.  He  includes,  as  genuine,  various  pseudonymous  works 
— e.  g.  Canones  Eadgari,  the  pseudo-Theodore,  the  Confessionale 
Egberti,  Leges  Henrici  Primi,  and  others.  His  texts  for  thel 
works  of  Aelfric  are  good,  as  are  also  those  of  the  Canons  of 
Edgar  and  the  Confessionale  Egberti,  when  allowance  is  made 
for  incorrectness  in  ascriptions,  etc. 

2.  Secondary , 

**1.  Brunner,  H.,  DRG. ^Deutsche  Rechtsgeschichte.  (2  vols.,  Leipzig, 
1887-1892;  2d.  ed.  of  vol.  i,  used,  1906). 

2.  Ibid.,  ERQ.—Gesclnchte  der  englischen  Rechtsquellcn  in  Grun- 
driss.  (Leipzig,  1909).  Cf.  Select  Essays,  infra. 

**3.  Chadwick,  H.  M.,  Studies  in  Anglo-Saxon  Institutions,  (Cam¬ 
bridge,  1905). 

**4.  Essays  in  Anglo-Saxon  Law.  ed.  IT.  Adams.  (Boston,  1876) 1 
Still  useful,  though  it  needs  checking  in  places  with  later  editions 
of  the  sources,  more  recent  critical  writings,  etc.  Material  from 
the  Penitentials  is  used  from  older,  poor  texts  and  very  un¬ 
critically  e.  g.  Frankish  works  are  quoted  to  illustrate  English 
practice,  etc.  The  best  essays  are  those  of  Adams,  on  “  Courts 
of  Law;”  by  E.  Young,  on  “Family  Law;”  and  by  Laughlin, 
on  “  Legal  Procedure.” 

**5.  Hodgkin,  T.,  History  of  England  .  ...  to  the  Norman  Conquest. 
Vol.  i  of  Hunt,  W.,  and  Poole,  R.,  Political  History  of  England. 

(London,  1905). 

**6.  Holdsworth,  W.  S.,  History  of  English  Lazo.  (3  vols.,  London, 
1903-1909,  now  in  process  of  revision  in  a  new  work,  of  which 
three  volumes  will  be  revisions,  while  three  more  will  be  new). 

*7.  Jenks,  E.  T.,  Lazo  and  Politics  in  the  Middle  Ages.  (London, 
1898;  2d.  ed.  used,  1913). 

**8.  Lea.  H.  C.,  Superstition  and  Force.  (Phila.,  1866;  later  ed.  used, 
1892). 

**9.  Pollock,  F.,  and  Maitland,  F,  W.,  History  of  English  Lazo.  ( 2 
vols.,  Cambridge,  1898). 

**10.  Maitland,  DB  —Domesday  Book,  etc.,  (3  vols.,  Cambridge,  1907, 
especially  vols.  i,  ii). 


APPENDIX 


571] 


213 


**11.  Pollock,  F.,  essay  “The  King's  Peace,”  in  his  Oxford  Lectures, 
chap.  iii.  (London,  1890.  Cf.,  also,  in  Select  Essays,  infra. 

12.  Pike,  L.  O.,  History  of  Crime  in  England.  (2  vols.,  London, 
1873-1876).  Still  possesses  some  slight  value  for  the  Anglo- 
Saxon  Laws. 

**13.  Seebohm,  F.,  Tribal  Custom  in  Anglo-Saxon  Law.  (London,  etc., 
1902).  Has  valuable  material  showing  the  relations  of  religion 
and  the  secular  laws,  besides  discussion  of  some  of  the  peniten¬ 
tial  canons  used  among  the  Irish. 

**14.  Select  Essays=S elect  Essays  on  Anglo-American  Legal  History . 
ed.  by  a  committee  of  the  Association  of  American  Law  Schools* 
(3  vols.,  Boston,  1907-1909).  Very  valuable.  Especially  nos. 
36,  by  Brunner;  48,  by  Maitland;  674,  by  Pollock;  and  769,  by 
Stubbs,  on  the  sources,  the  king’s  peace  and  canon  law,  re¬ 
spectively. 

**15.  Stubbs,  W.,  Constitutional  History  of  England.  3rd.  ed.,  especially 
vol.  i. 

**16.  Vinogradofif,  P..  English  Society  in  the  Eleventh  Century.  (Ox¬ 
ford,  1908). 

*17.  Maurer,  K.,  “  Angelsachsische  Rechtsverhdltnisse,”  in  Kritische 
Uberschau  der  deutsclien  Gesetsgebung.  (Miinchen,  1853  et  seqq.). 
Still  excellent  for  some  phases. 

18.  Grimm,  J.,  DRA=Deutsche  Rechstaltertiimer  ( 2  Bdc.  Leipzig, 
1854,  1899). 

19.  Wilda,  W.  E.,  Strafrecht  der  Germanen „  (Halle,  1842).  Espec¬ 
ially  chapter  v. 


C.  PERIODICALS 
Particularly  the  following: 

1.  AKKR.,  Archiv  fur  katholisches  Kir  cfoenrecht.  (Mainz,  1872 
et  seqq.). 

2.  Cymmrod.  Soc.,  Publications  of  the  Cymmrodorion  Society. 
(London,  etc.,  1877-). — Transactions,  (1892-1893,  1894-). 

3.  Historischcs  Jahrbuch.  ( Gorres-Gesellschaft ),  (1876-). 

4.  RHE,  Revue  de  I’histoire  ecclesiastique.  (Louvain,  1900-). 

5.  RHLR.,  Revue  de  Hhistoire  et  de  la  litterature  religieuse .  (Paris. 
1896-). 

6.  RHR.,  Revue  de  I’histoire  de  religions.  (Paris,  1880-) 

7.  Th.  Q.t  Theologische  Quartalschrift.  (Tubingen,  1819-). 

8.  ZKT.t  Zeitschrift  fur  katholische  Theologie.  (Innsbruck,  i877_) - 

9.  ZKG.,  Zeitschrift  fur  Kirchengeschichte.  (Gotha,  1877-). 


INDEX 


Abduction,  penanced,  142 
Abbots,  59 
Abbreviations,  200 
Abortion,  69,  196 
Absolution,  97;  and  under  recon¬ 
ciliation 

Adamnan,  Canons  of,  io8n.,  201 
Administration  of  penance ,  see 
penance,  directing  of 
Adultery,  by  clergy,  76;  ordeal 
for,  see  ordeals ;  penance  for, 
70,  71,  9in.,  1 13,  193  et  scqq., 
195;  public  penance  for,  see 
that  head 

Aelfheah  or  Elpheage,  St.,  ad¬ 
ministers  public  penance,  q.  v. 
Aelfric,  Canons  of,  15,  98,  101, 
105  n. 

African  councils,  see  under  sour¬ 
ces  for  the  Penitentials 
Aids,  206 

Albers’  version,  see  Pseudo-Bede  T 
Alcuin,  79  n. 

Alfred,  Laws  of,  144,  145,  146, 
203 

Alms,  52,  69,  89,  90,  92,  93,  94, 
96,  101 

Ancestor-worship,  137 
Anger,  see  Octoadc 
Anglo-Saxon  Laws,  149  n.,  203, 
204 ;  and  commutations,  101 ; 
enforce  penance,  14,  141-149; 
operation  of  149-161 ;  weakness 
of  150,  i'53,  154,  166;  and  under 
secular  laws 

Anglo-Saxon  penitentials,  18,  109, 
131,  132,  133,  *34,  201,  204;  and 
under  English  penitentials 
Animism,  137 

Apostolic  Canons,  124;  and  under 
Canones  Apostolicac 
Arms,  deprivation  of,  49,  77,  84, 
87,  96 
Arson,  45 

Athelstan.  Laws  of,  145,  147,  203 

573] 


Audientes,  see  stations 
Auditores,  see  audientes 
Augustine,  and  Egbert,  124 
Avarice,  see  Octoade 

Backsliding,  77  n. 

Baptism,  neglect  of,  penanced, 
141 

Barbarians,  laws  of,  13;  needed1 
socialising,  13 

Basil,  Canonical  Letters  of,  23-24 
no 

Bede,  the  Venerable,  life,  n8n. ; 
Penitential  of,  authorship,  104, 
1 17-120,  201;  and  commutations, 
98,  100,  101,  118;  and  composi¬ 
tions,  168,  170;  editions,  105  n., 
117,  1 18;  and  Egbert,  91,  92; 
influence,  120;  and  perjury,  175, 
176,  182;  and  pseudo-Bede  II, 
129,  130;  sources,  120;  spurious 
additions  to,  118;  Theodore,  115, 
H7. 

Benedictional  of  Archbishop  Rob¬ 
ert,  83;  of  Canterbury,  83 
Benedictus  Levita,  Capitula  of,  as 
source,  23 

Berghamstead,  Council  of,  see 
Wihtred,  Laws  of 
Bible,  as  source,  no,  124  n. ;  and 
under  Scriptures 

Bishop,  directs  penance,  59-60,  66; 
imposes  penance,  46,  87;  in  hun¬ 
dred-court,  155;  jurisdiction, 
144,  155;  reconciles,  67, _  68,  75; 
and  under  penance,  priest,  re¬ 
conciliation,  etc. 

Bishops,  influence  laws,  139 
Bitterness,  see  Octoade 
Black  fasts,  Irish,  66 
Blood,  shedding  of,  65 
Bot,  meanings  of,  143  n. 

Botless  crimes,  152  n. 

Brawling,  penanced,  196;  and 
under  fighting 


215 


21 6 


INDEX 


Brevi,  Synod  of,  34  202;  and 
Bede,  q.  v.\  and  Theodore,  no; 
and  under  early  British  peni¬ 
tentials 

Brigandage,  penanced,  71 
British  penance,  forms  of,  66,  67, 
73 

Brunner,  criticised,  192,  193 

Caesarius  of  Arles,  23,  85  n. 
Canones  Apostolorum,  22;  and 
see  Theodore,  sources 
Canones  Eadgari,  95-97,  100,  105  n., 
124,  201 ;  and  under  pseudony¬ 
mous  Canones  Eadgari 
Canones  Gregorii,  108,  109,  201 ; 
and  compositions,  170;  and  re¬ 
stitution,  173;  and  sacrilege,  173; 
and  Theodore,  q.v.;  and  under 
Theodore-cycle 

Canones  Hibernenscs,  38;  and 
commutations,  55,  69-71 ;  and, 
Theodore,  in,  113,  114;  and 
see  De  Arreis,  and  other  parts, 
and  under  libellus  Scottorum, 
old-Trish  De  Arreis,  etc 
Canones  Wallici,  34,  37 
Canonical  Letters,  24-26 
Canon  law,  works  on,  207-208 
Canterbury  Benedictional,  38 
Capitula  Dacheriana,  105,  201,  202; 
and  commutations,  q.  v. ;  and 
compositions,  170;  and  perjury, 
177;  and  restitution  173;  and 
under  Theodore-cycle 
Capitula  Theodori,  108,  109,  201, 
202 ;  and  under  Theodore-cycle 
Carinas,  see  quadrigesimae 
Carolingian  capitularies  on  pen¬ 
ance,  14,  48,  49;  revival  of  pen¬ 
ance,  48,  49 

Cassian,  as  a  source,  64,  no;  and 
see  Octoade 

Celtic  centers,  68  n. ;  heresy,  114, 
115;  laws  on  penance,  38;  mis¬ 
sions,  68  n.,  73,  74;  penance,  36, 
66,  67;  penitentials,  27,  30,  33, 
55 »  also  under  British,  early 
British,  black  fasts,  Irish,  super- 
imp  ositiones,  Welsh,  etc 
Charlemagne,  on  penance,  see 
Carolingians 

Children,  low  regard  for,  196 
Christian  burial,  deprival  of  50, 
87, .  141 ;  and  see  consecrated 
burial 


[574 

Church  fathers,  as  sources,  q.  v. 
and  22-23 

Church  history,  works  on,  208, 
209 

Church  influenced  law,  13,  139, 
140;  and  under  various  church 
institutions,  Penitentials,  etc 
Church,  a,  compurgation  in,  157  n. 
Church-peace,  145,  146;  and  see 
sanctuary,  right  of 
Clerics, .  injuries  to,  86,  145,  146; 
peculiar  penalties  and  penances 
for,  56-59,  145 ;  and  public  pen¬ 
ance,  56;  perjury  by,  190;  slay¬ 
ing  of,  142;  and  under  degrada¬ 
tion-,  demotion,  deposition,  de¬ 
privation,  suspension,  individual 
crimes,  etc 

Cloister,  abandoning  a,  146 
Clovesho,  Synod  of,  98,  79  n. 
Glut’s  Law,  and  Edward  and) 
Guthrum’s  Treaty,  144,  145,  146 
Cnut,  Laws  of,  on  penance,  144, 
146;  secular,  203 
Codex  Ecclesiae  Africanae',  seel 
African  councils 

Collectio  Hibernensis,  117m;  as 
a  source,  23,  74,  177;  and  under 
Hibernensis 
Columba,  St.  74 

Columban,  St.,  Penitential  of,  16, 
29,  201;  and  Bede,  q.v.;  and 
under  Celtic  penitentials,  early 
British  penitentials,  Vinnian, 
private  penance,  etc 
Communicants  favored  in  the  sec¬ 
ular  laws,  145 

Commutations,  ecclesiastical,  52- 
56,  148;  cautions  in  discussing, 
54-56,  98-104;  develope,  52-56; 
effect  of,  54-56,  98)  forms  of, 
52 ;  growing  use,  52,  53,  98,  103 ; 
in  the  Penitentials,  52,  53,  88 
et  seqq.,'  169-174;  in  Continental 
penitentials,  52;  in  English  pen¬ 
itentials,  53,  88-104,  128,  169; 
influence  of,  101-104,  167,  168, 
69-72;  Irish,  53,  69-72,  1 13; 
theory  of,  52,  71,  88,  91,  92; 
varied  in  the  Penitentials,  55- 
56,  69,  88  et  seqq.,  97-102;  with1 
part  penance,  98,  99,  and  see 
penance 

Commutations,  secular,  89  n.,  and 
see  communicants,  favored  in 
secular  laws;  also  under  indi- 


INDEX 


575] 

vidual  forms  of  commutations 
and  individual  penitentials 

Compensation,  joint,  143,  148;  to 
clerics,  146;  to  the  kin,  151,  152, 
157;  money,  94,  102,  103;  system 
described,  152,  153 

Compositions,  enforced  by  Peni¬ 
tentials,  69 ,  73,  92,  93,  94,  169, 
170,  174;  by  secular  law,  see 
enforcement;  in  addition  to  pen¬ 
ance,  69,  73,  99,  100,  146 ;  as  com¬ 
mutations,  89,  99,  100,  102,  167, 
168;  in  secular  laws,  see  com¬ 
pensations 

Compurgation,  and  the  Peniten¬ 
tials  1554  fostered  perjury,  q.  v. ; 
supervised  by  priests,  138;  when 
used,  139  n.,  155,  156;  and  see 
oaths 

Compurgators,  155,  156,  190;  from 
kindred,  151,  156 

Conciliar  decisions,  as  sources, 
see  Dionysiana,  etc 

Concubinage,  excommunication 
for,  86 

Confession,  Angloi-Saxon  words' 
for,  78;  before  ordeals,  140  n. ; 
in  England,  73  et  seqq . ;  fre¬ 
quency  of,  61,  68;  private  auri¬ 
cular,  50,  59,  60,  69,  73,  74; 
public,  59;  of  crime  required 
by  law,  I46n. ;  secular  com¬ 
mutation  for,  141 ;  also  under 
penance,  private  penance,  etc 

Confiscation,  as  a  penalty,  152 

Consecrated  burial,  deprival  of, 
87,  141,  147;  and  see  Christian 
burial 

Consistcntes,  see  stations. 

Constitutiones  Apostolicae,  as 
sources,  23 

Contempt  of  court,  86,  153  n. 

Continental  penance,  chap.  ii. ; 
penitentials,  27-33,  5<>,  55  5  and 
individually 

Convict-slavery,  152,  153,  97-102; 
also  under  slavery,  wite-theow, 
etc 

Cooperation  of  disciplines,  see 
jurisdiction,  Penitentials,  etc 

Councils,  reform,  require  a  pen¬ 
itential,  14 

Counterfeiting,  penalties  for,  153  n. 

County-court,  154 


217 

Courts,  kinds  of,  154,  155;  and 
individually 

Crime,  concepts  of,  influenced  by 
religion,  65 

Crimes,  punished  by  penance,  see 
individually 

Crippling,,  penanced,  93,  170 
Cross-vigils,  as  commutations,  70, 
7i 

Cummean,  Penitential  of,  202,  30; 
and  the  early  British  peniten¬ 
tials,  29,  30;  and  Egbert,  124; 
influence,  30,  and  under  above ; 
and  Theodore,  my;  cf.  pseudo- 
Cummean 

Custom,  in  English  laws,  149,  150 
Cuthbert,  St.,  and  penance,  74 

David,  St.,  as  author,  35,  36;  Pen¬ 
itential  of,  36,  201 ;  and  com¬ 
mutations,  55 ;  as  a  model,  36 ; 
and  restitution,  173;  and  The¬ 
odore,  no 

De  Arrets ,  Latin,  200,  38,  39,  40; 
and  commutations,  55,  70,  71 ; 
and  Egbert,  q.v.;  and  Theodore, 
m-114;  also  under  libellus,  old- 
Irish  De  Arreis,  etc 
Death-penalty,  137  n.,  138,  1 5^,  1 53 
De  Canibus  Synodus  Sapientium, 
38,  39 

De  Decimis,  38,  39 
De  Disputatione  Hibernensis  Sin- 
odi,  38,  39 

Defiling  a  nun,  penanced,  142 
Degradation  of  clerics,  56-58,  141 
Delegation,  see  substitution 
Deposition  of  clerics,  56-58 
De  remediis  peccatorum  paucis- 
sima,  126;  and  see  pseudo-Bede 
I 

Desires,  evil,  penanced,  200 
Devastators  of  church-land,  86 
Dialogue  of  Egbert,  79 
Dicta  Theodori,  see  Canones  Greg¬ 
or  ii 

Dionysiana,  as  source,  no 
Directing  of  penance,  26,  59-62, 
78;  also  under  bishop,  Celtic 
centers,  priest,  private  penance, 
public  penance,  etc 
Disabilities,  with  excommunica¬ 
tion,  86,  147,  148;  with  pen¬ 
ance  50 ;  and  under  depriva¬ 
tion,  dress,  exclusion,  excom- 


2 18 


INDEX 


munication,  relinquishment  of 
arms,  social  ostracism,  etc 
Discipulus  Umbrensium,  106,  ill 
Discrimination,  in  commutations, 
q.  v. ;  also  under  wealth ;  in  se¬ 
cular  laws,  155,  156,  157 
Dismissal  of  penitents,  see  sta¬ 
tions 

Distress,  legal,  see  seizure 
Divine  service,  neglect  of,  100  n., 
114 

Dress  of  penitents,  49,  96;  and  see 
public  penance 
Druidism,  penance  for,  71 
Druids,  power  of,  138  n. 

Early  .British  penance,  73-75,  76; 
and  under  Celtic,  Irish  and 
Welsh 

Early  British  penitentials,  18,  27, 
33-37.  no,  hi,  124;  and  under 
Celtic,  Irish,  Welsh,  etc.,  and 
individually 
Ebbo,  see  Ivo 

Ecclesia,  76  n.,  210;  and  see  dis¬ 
missal,  exclusion,  stations,  etc 
Ecclesiastical  courts,  139,  154,  155; 
enactments  in  secular  laws,  138, 
139;  Institutes,  Frankish,  105; 
jurisdiction  139m ;  legal  pro¬ 
cedure,  139;  materials  used, 
bibliography  204,  205 ;  offences 
penanced  by  secular  law,  141 
Edgar,  King,  public  penance  of, 
q.  V.;  laws  of,  203,  204 
Edgar,  Canons  of,  see  Canones 
Eadgari 

Edmund,  Laws  of,  on  penance, 
203,  143,  144,  145,  1(46;  and! 
perjury,  158 

Edward  the  Elder,  Laws  of,  203; 
treaty  with  Guthrum,  203,  143, 

144,14s,  146,  158 

Egbert,  and  the  Confessional,  132; 
-cycle,  104,  and  under  pseudo- 
Egbert;  life  of,  lain. 

Egbert,  Penitential  of,  authorship, 
120-123,  201  •  and  Bede,  g2}  124; 
and  compositions,  170;  editions, 
105  n.,  121,  122;  and  false  wit¬ 
ness,  175;  manuscripts,  121,  122; 
influence,  124,  125;  and  perjury, 
182;  and  his  Pontifical,  q.  v. ; 
and  the  pseudo-Bedes,  93,  125, 
138;  provides  commutations  90, 


[5  76 

91,  98;  requires  penitential,  ioo, 
14;  sources,  124;  spurious  ad¬ 
ditions  to,  123,  124;  style,  121 ; 
and;  Theodore,  1115,  117,  120, 
123.  Also  under  pseudo-Egbert 

Egbert,  works  of,  see  Dialogue, 
Penitential,  Pontifical 

Eligius  or  Eloi  of  Noyon,  as  a 
source,  23 

Enforcement,  of  laws,  154,  161- 
166 

English,  centers,  see  private  pen¬ 
ance;  Church,  penance  in,  73-97; 
laws  and  the  Penitentials,  135 ; 
on  confession,  73  et  seqq . ;  pen¬ 
ance  before  Theodore,  73-75 ;  in 
Theodore’s  time,  75-78;  after 
Theodore,  78-88 

English  penitentials,  defined,  104; 
editions,  105,  and  individually ; 
extensive  use  of,  104;  influence, 
18-22,  30,  55 ;  and  the  king’s 
peace,  q.  v. 

Envy,  see  Octoctde 

Eoda,  107,  1 12  n. 

Ethelbert,  Laws  of,  omit  penance, 
145;  date  of,  203 

Ethelred,  Laws  of,  204;  on  pen¬ 
ance,  79  n.,  144,  145,  146  and 
nn.,  147 

Excerptiones  Egberti,  79  n.,  105 
and  nn. 

Exclusion  from  church,  76,  141 ; 
from  church  rites,  87;  also 
under  excommunication,  secular 
laws,  stations,  etc 

Excommunication,  for  contempt 
of  court,  169  m;  for  continuing 
feud,  169  n. ;  for  criminals,  147; 
formulae,  86,  147;  as  penance, 
49,  86;  required  by  secular  laws, 
q.  v. ;  and  under  individual 
crimes,  disabilities,  etc 

Exile,  as  penalty,  152,  153;  as 
penance,  50 

False  witness,  consent  to,  180, 
184;  defined,  193;  degrees,  176; 
distinct  from  perjury,  192,  193; 
in  ecclesiastical  jurisdiction, 
q.  v. ;  motives  for,  193 ;  penalties 
for,  158;  penance  for,  91  n.,  176, 
178,  180,  182,  183/  184;  public 
penance  for,  81 

Familiarity,  illicit,  penanced,  70 


INDEX 


577 3 


219 


Fast-breaking,  penanced,  141 
Fasting,  before  ordeals,  140  n. ;  as 
penance,  50-52,  66,  88  n.,  90,  93, 
95,  96,  97 

Feet,  washing  of,  97 
Feriae  legitimae,  51 
Feud,  and  the  Penitentials,  167- 
169;  enforces  outlawry,  1647 
effect  of  allowing,  164;  in  se¬ 
cular  laws,  13,  15 1,  152;  pen¬ 
anced  by  secular  laws,  145.  Also 
see  kin-help,  self-help,  venge¬ 
ance,  etc. 

Fighting,  penalty  for,  92,  145  n. ; 

and  see  brawling,  etc. 

Finnian,  see  Vmnian 
Flentes,  see  stations 
Food  prohibitions,  see  fasts  and 
unclean 

Forfeiture,  as  penalty,  152,  163 
Forms  of  penance,  q.  v. 
Fornication,  a  capital  sin,  65 ;  ex- 
communication  for,  145 ;  pen¬ 
alty  for,  195,  196;  penances,  91, 
1 13,  128,  142,  195,  196;  public 
penance  for,  45,  77  n.,  81,  79; 
unnatural,  128.  Also  Under  de¬ 
filing,  lewdness,  pollution,  sod¬ 
omy,  etc. 

Frankish  influence,  100,  123;  laws 
requiring  penance,  143  n.,  29-33 
Fugitives  from  justice,  see  out¬ 
laws,  outlawry,  etc;  excommu¬ 
nicated,  86 

Gemots,  139;  and  see  courts 
Genuflections,  as  commutations, 

52,  78,  79,  89,  91,  92,  95,  97,  99, 
100 

Gildas,  Penitential  of,  36,  37,  55, 
120,  201 

Gluttony,  see  Octoade;  also  ex¬ 
cesses 

Greek  practices  and  Theodore,  no 
Gregory  of  Nazianzen,  non., 
124m ;  and  under  sources 
Gregory  the  Great,  124 
Gregory  of  Nyssa,  24-25 ;  and  un¬ 
der  sources 

Gregory  II,  and  pseudo-Bede,  126 
Gregory  Thaumaturgus,  see  Can¬ 
onical  Letters 

Guides,  bibliographical,  205,  206 


Hadbcrt,  and  penance,  146;  date, 
204 

Halitgar  of  Cambrai,  Penitential 
of,  31,  133,  202;  and  see  reform 
councils,  pseudo-Egbert,  etc. 

Heresy,  penance  for,  70,  71,  76; 
and  see  public  penance;  Celtic 
heresy,  etc. 

Hertford,  Council  of,  no 

Hibernensis,  The,  see  Collectio 
Hibernensis 

High  treason,  excommunication 
for,  86 

Hlotbaere  and  Eadric  Laws,  omit 
penance,  145 

Holidays,  breaking  of,  penanced, 
141 

Homicide,  by  clergy,  56,  76,  91  n., 
142,  146  n. ;  degrees  of,  196 ;  in 
revenge,  commuted,  89,  167,  168; 
ordeal  for,  q.  v. ;  penance  for, 
70,  91  n.,  93,  inn.,  113,  168; 
public  penance  for,  45.  79,  81, 
142;  and  under  manslaughter, 
murder,  slaying,  etc. 

Humanity  and  the  Penitentials, 
93,  171,  200;  and  under  hos¬ 
pitality,  medical  treatment, 
slaves,  slavery,  etc. 

Hundred-court,  139,  154 

Idolatry,  by  clergy,  penanced,  see 
clergy;  public  penance  for,  79; 
and  under  paganism 

Imposing  of  penance,  ceremonies, 
46,  47,  75,  80,  83;  in  Penitential 
of  Egbert,  Pontifical,  etc.,  q.  v. ; 
in  Penitential  of  Theodore,  75, 
76;  of  public  penance,  46  et 
seqq. ;  and)  see  imposition,  bishop, 
priest,  etc. 

Imprisonment,  as  a  penalty,  152; 
as  a  penance,  49,  51. 

Incest,  in  jurisdiction  of  bishop, 
q.  v.;  penance  for,  91  n.,  141,  145, 
193,  I95»  102,  103;  secular  pen¬ 
alty  for,  194;  public  penance 
for,  45,  77  n. 

Indulgences,  102,  103;  and  see 
commutations 

Ine,  Laws  of,  145,  158 

Infanticide,  70,  128 

Institutes  of  Polity,  105 

Insubordination  of  the  clergy, 
penalised,  142 


220 


INDEX 


Irish  canons,  37-41 ;  and  see  Irish 
penitentials,  Canones  Hibernen-i 
ses,  Hibernensis,  etc.;  and  old- 
Irish  De  Arreis 

Irish  Church,  commutations  ex¬ 
tended  in,  7 1,  72;  confession 
and  penance  in,  67-72 
Irish  laws  requiring  penance,  38; 
missionaries  and  English  pen¬ 
ance,  68  ;  money  and  slaves,  38; 
quaint  old  penances,  66 ;  peni¬ 
tential  canons  and  Egbert,  124; 
and  Theodore,  113,  x  14 ;  in¬ 
fluence,  74.  Also  see  Canones 
Hibernenses,  De  Arreis,  Hiber¬ 
nensis,  old-Irish  De  Arreis,  Pat¬ 
rick,  Vinnian,  etc. 

I vo  of  Chartres,  Capitula,  as  a 
source  for  the  Penitentials,  23 

Jerome,  and  Egbert,  124  n. 
Judgment,  162;  and  under  distress, 
seizure,  etc. 

Jurisdictions,  intermingling,  and; 
penitential  influence,  15,  102,  138- 
141 ;  ecclesiastical,  139  n. 

Kin,  importance  of  the,  150 
Kindred,  power  and  responsibility, 
150,  151,  156,  157;  powerful,  164! 
Kin-help,  as  enforcement,  150,  162, 
163 ;  and  see  feud 
King* s  officials,  when  called  in, 
150,  164;  and  see  under  indiv¬ 
idual  officials,  and  on  king’s 
peace 

King’s  peace,  development,  165 
King’s  power,  increase  in,  165 ; 

weakness  in,  150,  164 
Kinship,  power  of,  149 

Late  English  penitentials,  sources, 
31,  45,  56;  and  individually 
Law,  Germanic,  see  Anglo-Saxon 
Lawlessness,  complaints  against, 
152,  153,  154;  fostered  by  kin- 
help  and  self-help,  164 
Laws,  ecclesiastical,  require  pen¬ 
itential,  14,  15;  English,  q.v.; 
requiring  penance,  among  the 
Carolingians,  14;  increased 
authority  of  the  Penitentials,  14. 
Also  see  laws  of  individual 
peoples 


[578 

Lea,  on  the  Penitentials,  199,  200; 

on  perjury,  criticised,  187,  188 
Legal  procedure,  described,  155- 
166;  influenced  by  religion,  138- 
141 

Leges  Henrici  Primi,  spurious, 
204;  and  pseudo-Egbert,  q.v. 
Lewdness,  penanced,  71 
Lex  Dei,  see  sources  of  the  Peni¬ 
tentials 

Libellus  Scottorum,  74,  89,  non., 
1 12,  1 13;  and  Canones  Hiber¬ 
nenses,  q.v. 

Liber  de  Remediis  Peccatorum, 
see  pseudo-Bede  II 
Liber  Pontidcalis,  106 
Lncus  Victoriae,  Synod  of,  34, 
1 14,  202;  and  Bede,  120;  and 
perjury,  q.v.)  and  Theodore, 
no,  114 

Lying,  penanced,  71,  180 

Magdalen  Pontifical,  83 
Magic,  excommunication  for,  86; 
exile  for,  153  n. ;  penanced,  70, 
146  n. ;  public  penance  for,  45, 
79,  89 

Manorial  jurisdiction,  154 
Manslaughter,  penanced,  71 ;  also 
under  homicide 
Manstealings,  penanced,  71 
Manuscripts  of  the  Penitentials, 
IS:  and  under  individual  codes, 
editions,  etc. 

Marriage,  with  a  nun,  penanced, 
142,  and  under  nun;  within  the 
prohibited  degrees,  45,  141 
Masses,  as  commutations,  95,  96, 
97,  100,  101 
Masturbation,  114 
Medical  treatment,  as  partial  com¬ 
position,  93,  171 

Medicinal  phase  of  penance,  87,  88 
M  einwerke,  137  n. 

Merseburg,  Penitential  of,  202;' 
and  perjury,  177;  and  Theo¬ 
dore  117 

Misconduct  of  legal  procedure, 
140  n. 

Missionaries,  see  'Celtic,  Irish, 
Welsh,  etc 

Modus  Imponendi  Poenitentiam, 
and  commutations,  98;  public 
penance  in,  82 


INDEX 


221 


579] 

Monastery,  penance  in,  see  mon-. 
astic  life 

Monastic  life,  as  penance,  49,  51, 
59.  77,  87;  and  under  individual 
offences,  forms  of  penance,  etc 
Money,  as  commutation,  52,  69, 
89-91,  92,  93,  94,  95,  96,  99,  ioi, 
102;  values  of  commutations, 
90;  cf.  under  individual  peoples 
Monk  or  nun,  they  who  marry, 
excommunicated,  86 
Moral  aspects  of  the  Penitentials, 
and  influence  of  the  Peniten¬ 
tials,  q.  v. 

Morth,  142;  cf.  magic,  murder 
Morthworkers,  exiled,  153  n. 
Motives,  as  connected  with  pen¬ 
ances,  196 
Mund,  15 1 

Murder,  as  a  capital  sin,  65,  and' 
see  sins,  etc.;  of  kin,  ordeal 
for,  q.  v.)  penalties  for,  193,  194; 
secret,  see  morth ,  magic,  etc.; 
and  cf.  homicide,  etc. 

Mutilation,  as  penalty,  152,  153 

iNature  of  penance,  42,  43 
Nicene  Council,  and  Theodore, 
q.  v. 

Notorious  offences,  see  crimes, 
sins,  heinous,  etc 
Novellae  of  Justinian,  no 

Oaths,  as  an  ordeal,  157;  distinc¬ 
tions  in,  not  introduced  by 
Church,  187-189;  feudal,  181  n., 
and  under  fealty,  perjury,  etc.; 
forms  of,  see  separately,  under 
religious  safeguards ;  in  a  church, 
157  n. ;  of  peace,  157  n. ;  of  un¬ 
feud,  see — of  peace ;  on  an 
altar,  157  n. ;  on  a  cross,  157  n. ; 
on  a  false  god,  157  n.;  on  the 
Gospel,  157  n. ;  on  a  kinsman’s 
hand,  157  n. ;  on  that  of  an  or¬ 
dained  person,  157  n. ;  on  that 
of  a  reeve,  157m ;  on  holy  oath- 
rings,  157  n. ;  on  the  name  of; 
God,  157  n. ;  on  relics,  157 «. ; 
on  a  stone,  157  n. ;  and  see  under 
perjury,  oath — religious  safe¬ 
guards  of,  etc. ;  on  weapons, 
157  n. ;  religious  safeguards  of, 
157,  187,  188,  and  under  per¬ 
jury;  varying  values,  156,  157, 


187,  188,  and  under  discrimina¬ 
tion,  etc 

Oath-privileges,  of  a  communi¬ 
cant,  q.  v. 

Octoade  of  sins,  64,  65 ;  and  see 
Cassian,  etc. 

Offences  lightly  penalised  by  se¬ 
cular  law,  q.  v.;  penanced  by 
the  latter,  see  secular  require¬ 
ment.  See,  also,  under  eccle¬ 
siastical,  secular,  semi-eccles¬ 
iastical,  crimes,  sins,  etc.,  and 
individually 

Old  Irish  De  Arrcis,  40,  71 ;  in¬ 
creased  commutations,  see  Irish 
commutations 

Ordeal  of  fire,  in  pseudo-Bede  II, 
186 

Ordeals,  confidence  in,  160  n. ;  de¬ 
cline,  160,  161 ;  efficacy  of,  160, 
161 ;  forms,  159;  religious  prac¬ 
tices  in,  160;  supervised  by 
Christian  priests,  140;  by  pagan 
priests,  138;  when  used,  139  n., 
x59 

Order,  transgression  of,  71 

Ordinatio  Ecclesiae  Apostolical, 
as  a  source,  23 

Ordines  ad  dandam  poenitentiam, 
see  pontificals,  public  penance, 
etc.; — ad  reconciliandum  poeni- 
tentes,  under  similar  heads 

Ordo  Romanus,  and  Bede,  130 

Outlaw,  words  for,  163  n. 

Outlawry,  declared  and  enforced 
by  priests,  138;  efficacy  of,  147, 
164;  for  enforcement,  152,  153, 

163 

Paganism,  penalty  for,  152  n. ;  pen¬ 
anced,  97,  142;  public  penance 
for,  81 

Pagan  priests,  power  of,  over  law, 
137,  138 

Parricide,  penance,  70,  71,  91  n. 

Patrick,  St.,  alleged  canons  of, 
38;  alleged  synod  and)  perjury, 
177;  and  Poenitentiale  Martc- 
nianum,  q.  v. 

Penalties,  secular,  102,  152;  sum 
of  secular  and  of  penitential, 
194 

Penance,  Anglo-Saxon,  words  for, 
78,  143  n. ;  bibliography  on,  209, 
210;  and  confession,  sources 


222 


INDEX 


for,  203),  210 ;  as  a  socialising 
force,  13,  and  under  Peniten- 
tials,  influence;  enforced  by  se¬ 
cular  laws,  q.  v. ;  periods,  50  et 
scqq. ;  supplements  secular  dis¬ 
cipline,  13;  and  under  Peniten-' 
tials  and  individual  forms, 
peoples,  etc. 

Penances,  forms  of,  50-52,  66,  67; 
how  combined,  87 ;  required 
with  commutations,  q.  v. ;  sup¬ 
plement  secular  penalties,  69,  931 

Penitentials,  alleged  hygienic  in¬ 
fluence  of,  200;  and  compurga¬ 
tion,  155;  and  compositions,?.?/.; 
critical  works  on,  15-19;  dif¬ 
ferentiated  degrees  of  crime, 
65;  editions,  15-19,  205;  and  ex¬ 
cesses,  200 ;  and  feud,  q.  v. ;  gen¬ 
eral  nature,  14;  history,  sket¬ 
ched,  14,  27-29,  55,  56;  import¬ 
ance,  shown  by  frequent  re¬ 
quirement,  q.y. ;  by  frequent  use, 
14,  *5;  by  influence,  q.  v. ;  in¬ 
culcated  charity,  200;  cleanli¬ 
ness,  200;  forgiveness,  200;  hos¬ 
pitality,  200;  loving-kindness, 
200;  influence,  in  general,  14, 
I35>  165,  and  individually,  etc. ; 
on  institutions,  15,  18;  inter¬ 
action  with  secular  laws,  54,  55, 
89,  chap,  v,  165,  166;  chap,  vi; 
must  be  known  by  priest,  14;' 
names  of,  in  general,  14,  of¬ 
fences  penanced  in,  14  and  see 
offences  and  individually;  and 
perjury,  q.  v. ;  reinforce  secular 
laws,  54,  55,  89,  chap,  vi;  and 
restitution,  q.  v. ;  ripe  for  re¬ 
search,  14,  20;  reactionary  type, 
29,  55,  56;  severe  type,  55,  56; 
sources  for,  22-41,  115,  116,  and 
under  individual  codes ;  as 
sources,  misused,  15;  neglected, 
210;  stages  in  development  of, 
27-29,  55,  56;  and  synodal 

courts,  q.  v. ;  used  in  modern 
works,  15,  18,  210.  Also  see 
under  individual  codes,  penance, 
authors,  commutations,  etc. 

Penitents,  place  for,  85,  and  under 
exclusion,  stations,  etc 

Periodicals,  bibliography,  213 

Periods  of  penance,  50-52;  short¬ 
ening  of,  50,  51 ;  varied,  50-52 


[580 

Perjury,  by  a  cleric,  penanced, 
142,  158  and  under  degrees;  by 
the  laity,  see  degrees ;  a  capital 
sin,  176,  182;  chiefly  disciplined 
by  penance,  69,  145,  chap,  vi; 
compulsory,  175,  176,  177  n.,  178, 
179,  181,  183,  184,  190,  1 91 ;  con¬ 
scious,  1 76,  179,  181,  183,  184, 
185;  degrees  of,  176,  179,  187; 
according  to  persons,  176,  178, 
179,  182,  183;  distinct  from 

false  witness,  192,  193 ;  eccle¬ 
siastical  penalties  for,  enforced, 
1415;  excommunication  for,  86, 
147;  for  a  kinsman,  180;  for 
any  necessity,  185;  fostered  by 
secular  laws,  155,  159,  190;  from' 
cupidity,  (greed),  158,  179,  183, 
184,  185,  190;  from  favor,  178; 
from  fear  of  death,  178,  179,  183, 
192;  from  hate,  180;  general  or 
simple  perjury,  175,  176,  177 , 
181,  182,  184,  186  et  seqq.,  190; 
Germanic  scorn  for,  159  n. ;  in  a 
church,  157  n.,  175,  176,  177,  178, 
179,  181 ;  in  the  oath  of  alle¬ 
giance,  175,  186;  in  that  of 
fealty,  175,  1831,  185;  in  the 
Penitentials,  174-193;  meaning 
in  the  latter,  186;  on  consecrated 
objects,  157 n.,  and  individually; 
on  a  consecrated  cross,  175,  176, 

178,  179,  184;  on  an  altar,  175, 
177,  178,  179;  on  an  unconse¬ 
crated  cross,  175,  181,  189;  on 
unconsecrated  objects,  175,  and 
individually;  on  the  hand  of  a 
cleric,  157m,  175,  176,  178,  179; 
on  the  Gospel,  176,  178,  179,  181, 
184,  189 ;  on  a  layman’s  hand, 
17 5,  1/8,  184;  on  relics,  176,  178, 

179,  181,  189 

Perjury,  penalties  for,  153  n.,  158; 
penance  for,  91  n.,  142,  145,  chap, 
vi ;  and  under  various  kinds ; 
prevalent,  156,  157,  159;  public 
penance  for,  45,  79,  91 ;  simple, 
see  general  perjury;  suborning 
of,  179,  184,  185,  191;  super- 
naturally  punished,  157;  through 
greed,  see — from  cupidity;  un¬ 
conscious,  177,  178,  179,  180,  181, 
184,  190,  191 ;  under  ecclesias¬ 
tical  jurisdiction,  157,  158;  vol¬ 
untary,  see  conscious ;  wilful, 


INDEX 


581] 

after  doubt,  177,  17S,  184,  185, 
192 

Pilgrimages,  as  penance,  49,  52, 
72;  as  commutations,  q.  v. 
Pinuphius,  see  Punifius. 

Pledge,  breach  of,  142,  162 
Poenitentiale  Ecclesiarum  Ger~ 
maniae,  202 

Poenitentiale  Martenianum,  201, 
203,  and  under  Theodore-cycle; 
and  perjury,  177;  and  Theodore, 
177 

Poenitetitiale  XXXV  Capitulorum, 
and  Theodore,  117 
Pontificals,  later  than  Egbert,  on 
public  penance,  76  n.,  82-84; 

compared  with  that  of  Egbert, 
83  n. ;  as  sources  for  penance, 
82-84.  Also  under  individual 
ones 

Pontifical  of  Egbert,  and  public 
penance,  79-81 ;  compared  with 
later  ones,  83  n. ;  and  his  Peni¬ 
tential,  79-81,  123 

Prayers,  as  commutations,  q.  v., 
and  92,  100;  as  penance,  93 
Pride,  see  Octoadc 
Priest,  imposes  penance,  60,  87; 
and  penance,  q.  v. ;  reconciles,  60, 
67,  75 ;  supervises  legal  proce¬ 
dure,  140.  Also  cf.  under  bishop, 
legal  procedure,  private  pen¬ 
ance,  etc 

Private  jurisdictions,  154,  155 
Private  penance,  50-52,  59,  60;  in 
the  Anglo-Saxon  Church,  73- 
75,  77.  78;  and  Celtic  centers, 
q.  v. ;  forms  of,  50-52,  65-66,  87, 
147;  and  Theodore,  77 
Problems  concerning  the  Peniten- 
tials,  21-22 

Proofs,  three  forms  of,  155 
Prostrations,  as  commutations,  52, 

70,  7 1,  97 

Psalms,  as  commutations,  52,  70, 

71,  72,  73,  88n.,  90,  92,  93,  95,  96. 
99,  100.  Also  under  commuta¬ 
tions 

Pseudo-Bedes,  125  ;  and  Bede,  125  ; 
and  Egbert,  125;  and  perjury, 
180-186 

Pseudo-Bede  I,  104,  125;  author¬ 
ship,  125-128;  Albers’  edition, 
125 ;  and  Gregory  II,  q.  v. ;  as  re- 


223 

lated1  to  pseudo-Bede  II,  125, 
126,  128,  129,  130,  180- 186 
Pseudo-Bede  II,  authorship,  105, 
1 17,  129,  130,  201;  and  com¬ 
mutations,  92,  100,  101,  168; 

editions,  129;  and  Egbert,  130; 
sources,  126.  Cf.  Liber  de  Re¬ 
nt  ediis  Peccatorum 
Pseudonymous  Canones  Eadgari, 
105,  134,  135;  and  see  Canones 
Eadgari 

Pseudo-Cummean,  Penitential  of, 

29,  30,  202;  and  compositions, 
170;  and  pseudo-Egbert,  133; 
and  restitution,  173;  and  Theo¬ 
dore,  q.v. 

Pseudo- Egbert,  Confessional  of, 
authorship,  132,  133,  201 ;  and| 
commutations,  92,  93,  100,  101 ; 
editions,  1050.,  131 ;  influence, 
133;  and  perjury,  178,  and  see 
that  head ;  sources,  132 
Pseudo-Egbert,  Penitential  of, 
authorship,  134,  135;  on  com¬ 
mutations,  56,  100,  101 ;  edi¬ 
tions,  105  n.,  133;  influence,  134; 
on  secular  laws,  134,  135 ;  pos¬ 
sibly  partly  Egbert’s  134;  and 
perjury,  178,  179,  and  see  that 
head ;  public  penance  in,  79,  82 ; 
and  restitution,  173,  174;  sour¬ 
ces,  134 

Pscudo-Isidoriana,  as  a  source  for 
the  Penitentials,  23 
PseudoJRoman  Penitential,  18,  2 7, 

30,  202 

Pseudo-Theodore,  Penitential  of, 
31-32,  56,  105,  109,  130,  201, 
203  ;  and  the  Capitula  Theodori, 
q.v.\  influenced  secular  law,  32; 
and  perjury,  177,  179,  and  under 
that  head.  Cf.  Theodore 
Public  acts  of  penance,  46-49,  77, 

|  84,  85 ;  and  see  under  arms, 

burial,  dress,  scourging,  etc. 
Public  penance,  absent  in  the  early 
British  Church,  66,  67,  74;  cere¬ 
monies  of,  77,  80;  controversy 
over,  20,  45  et  scqq.,  73-80,  210, 
21 1 ;  dates  of,  47,  60;  directing 
of,  20;  effect  of,  45;  importance, 
42-45;  in  England,  45,  65-67, 
80  et  seqq.,  84;  in  the  Irish 
Church,  disputed,  75-78;  in  the 
1  Penitential  of  Theodore,  75-771 


224 

revival  of,  48,  49;  varied,  45 
et  seqq. 

Punifius  and  Egbert,  124 

Quadrigesimae,  51,  90,  93 
Quarantines,  see  quadrigesimae 

Ralph  de  Diceto,  106  n. 

Rape,  penalty  for,  195,  196;  pen¬ 
ance  for,  195,  196;  public  pen¬ 
ance  for,  45 

Reconciliation,  60,  61,  62-64,  73- 

74;  ceremonies,  62,  63  ;  date,  62; 
in  Pontifical  of  Egbert,  q.  v.\ 
in  later  pontificals,  q.  v. ;  private, 
60,  61,  63;  public,  60,  62,  63,  67, 
75 ;  terms  for,  62.  Also  see 

public  penance,  etc. 

Redemptions,  52;  and  see  com¬ 

mutations 

Reforms  of  the  ninth  and  tenth 
centuries,  147 

Reform  councils,  see  Penitentials, 
history  of 

Reformation,  penalties  in  the,  101 
Regino  of  Priim,  and  Bede,  118, 
1 19;  and  the  Penitentials,  14,  31 
Religion  and  primitive  law,  137, 

138 

Religious  safeguards  of  the  oath, 
q.  v. 

Remission,  methods  of,  95,  9 7 
Renegade  monks  and  nuns,  ex¬ 
communicated,  86 
Restitution,  as  commutation.  89, 
95,  172;  required  by  the  Peni¬ 
tentials,  172-174,  89;  by  secular 
law,  173  n. 

Rhabanus  Maurus,  and  Egbert, 
121 ;  on  Theodore,  see  author¬ 
ship  of  Theodore ;  Penitential 
of,  30 

Rheims,  Penitential  of,  and  the 
Confessional  of  Egbert,  132  n. 
IRobbery,  see  brigandage,  theft; 

public  penance  for,  45 
Roman  Penitential,  see  pseudo- 
Roman  ;  usage,  80 

Sacral  safeguards,  see  religious 
safeguards  of  the  oath 
Sacrilege,  157 

Sadness  of  the  world,  see  Octoade 
Saints’  relics,  157,  and  under  per- 


[582 

jury,  religious  safeguards  of 
the  oath 

Sanctions,  extra-legal,  137,  149 
Sanctuary,  law  of,  141 ;  and  see 
church-peace 

Scourging,  as  penance,  49,  71,  90 
Scriptures,  the,  as  a  source,  109; 
and  under  Bible 

Secular  crimes,  penanced  by  law, 
141,  144,  145 ;  and  individually 
Secular  laws,  bibliography  of,  21 1- 
213;  penancing  specific  crimes, 
144-146,  and  individually,  under 
specific  kings,  crimes,  etc. ;  re¬ 
quiring  excommunication,  141, 
145 ;  requiring  penance,  devel- 
ope,  141-149 

Self-help,  method  of,  150,  162, 
163 ;  and  under  kin-help 
Seizure,  as  enforcement,  161,  162; 
and  under  distress,  forfeiture, 
etc 

Self-pollution,  penanced,  100  n. 
Semi-ecclesiastical  offences,  141, 
142 

Sendgerichte,  see  synodal  courts 
Septimana,  51 

Serfs,  mistreatment  of,  penanced, 
196;  and  cf.  under  “  servus,” 
^  slave,  etc 

Shire-court,  ecclesiastical  law  in, 

155 

Shire-courts,  154,  155 
Sins,  classified.  64;  notorious,  45, 
64,  65,  70,  71.  85,  87,  93,  193- 
197,  and  individually;  requiring 
public  penance,  45;  secret  hein¬ 
ous,  45,  85 

Slave,  adultery  with  a,  penanced, 
1 13;  and  see  adultery 
Slavery,  for  default  of  justice, 
153  n.,  162;  as  a  penalty,  152, 
170 

Slaves,  as  commutations,  39,  1 13 11. ; 
freeing  of,  as  a  commutation, 
52,  69,  94;  mistreatment  of,  pen¬ 
anced,  1 13.  196;  sellers  of,  ex¬ 
communicated,  86 
Slaying,  145 ;  and  see  homicide 
Socialising  influence  of  the  laws, 
13;  and  under  king's  peace,  Pen¬ 
itentials,  etc. 

Sodomy,  86,  114,  128 
Soothsayers,  exile  for,  153  n 


INDEX 


INDEX 


225 


583] 

Soothsaying,  penanced,  71 ;  public 
penance  for,  45,  81  n 
Sources,  abreviations  for,  see  “  ap¬ 
pendix  ;  ”  dates,  see  “  appendix  ” 
and  chaps,  i,  iv,  v,  and  individ¬ 
ually;  for  confession  and  pen¬ 
ance,  q.  v. 

Stations  of  the  cross,  as  commuta¬ 
tions,  92;  penitential,  46-48,  68, 
76,  77 

Statuta  s.  Bonifacii,  23,  123 
Substitutions,  52,  72,  96,  97,  99 
Substrati ,  see  stations 
Summae  confcssorum,  supersede 
Penitentials,  29 

Superimpositiones,  51,  66;  and  see 
Celtic  penance,  etc 
Superpositioncs,  see  superimposi¬ 
tiones 

Surety,  kin  as,  151 
Suspension  of  clerics,  56-58 
“  Synod  ”,  meaning  of  the  word, 
34,  138  n. 

Synodal  courts,  60 
Synodus  Hibemcnsis  Decrevit, 
202;  and  see  Canones  Hibernen- 
ses 

Taboo,  see  food  prohibitions,  the 
unclean,”  etc.;  as  a  sanction,  137, 
149 

Theft,  by  a  cleric,  penanced,  56, 
142,  14511.,  146  n. ;  cognisance  of, 
153;  frequent,  penalty  for, 
153  n. ;  penance  for,  89,  91  n., 
95,  1 13,  193;  public  penance  for, 
79.  Also  see  under  restitution 
Theodore-cycle,  and  commuta¬ 
tions,  98.  101 ;  editions  of,  105  n., 
108;  and  perjury,  177;  penance; 
in,  78  and  under  specific  of¬ 
fences;  use  of,  1 15 
Theodore,  Penitential  of,  55,  104, 
201,  203;  authorship,  105-107; 
and  Bede,  120;  and  Canones 
Gregorii,  q.  v. ;  and  Capitula 
Dachcriana,  q.  v. ;  and  the  Celtic 
heresy,  114,  1 15 ;  and  commuta¬ 
tions,  88,  89,  98,  101 ;  and  com¬ 
positions,  89,  169  ct  scqq.  and 
the  Confessional  of  pseudo- 
Egbert,  93,  132 ;  editions,  16, 
105  n.,  107,  108;  and  Egbert,1 
q.v.\  and  perjury,  175,  177,  178, 
189,  and  under  perjury;  and  the 


Pocnitentiale  Martcnianum,  q.v.; 
and  the  pseudo-Egberts,  p.  v. ; 
and  pseudo-Theodore,  q.  v. ;  has 
some  independent  material, 
ii4n. ;  influence,  106  n.,  114, 

1 15,  1 17;  literature  on,  106  n. ; 
and  private  penance,  74,  75 ;  and 
public  penance,  74,  75-77,  79  n. ; 
and  the  pseudo-Cummean,  q.  v. ; 
requires  restitution,  89,  172,  173; 
sources,  89,  109,  no;  style,  203 
Thoughts,  sinful,  penanced,  64,  65, 
199,  200, 

Triduana,  51;  as  commutations, 
89 

Unchastity  of  clerics,  penanced, 
141  and  see  fornication,  Octoade, 
etc. 

Unclean  acts,  penance  for,  70, 
100 n.,  inn.,  114,  128;  and  cf. 
under  fasts,  food  prohibitions, 
etc 

Usury  by  clergy,  public  penance 
for,  45 

Vain-glory,  see  Octoade 
'Vengeance,  concessions  to,  167, 
168;  private,  recognised,  13,  152 
Vennian,  see  Vinnian 
Vigils,  as  penance,  66,  93 
Vinnian,  Penitential  of,  author¬ 
ship  of,  40-41,  55.  202;  and 
Bede,  41,  120;  and  commuta¬ 
tions,  69;  and  compositions,  170, 
113;  and  Theodore,  in,  113;  and 
restitution,  173;  as  a  model,  41; 
as  related  to  Uolumban,  29,  41 
Vouching  to  warranty,  and  false 
witness,  q.  v.,  and  191 
■Vows,  breaking  of,  penanced,  142 

Warnefrid,  Paul,  106 
Wealth,  as  affecting  penance,  93, 
96,  97,  103 ;  and  see  commuta¬ 
tions,  discrimination,  etc 
Wed-bryce  see  pledge 
Welsh  Church,  confession  and 
penance  in,  72-73 ;  literature  on, 
72,  73 ;  and  see  under  Celtic, 
early  British,  churches,  leaders, 
Welsh  penitentials,  etc 
Welsh  laws  enforcing  penance, ,  73 ; 
penances,  severe,  72,  73 ;  peniten- 


226 


INDEX 


[584 


tials,  33-37;  their  influence,  33, 
74,  1 14;  and  see  individually 
Wihtred,  Laws  of,  145,  147 
Witan ,  jurisdiction  of,  139 
Wite-theow,  see  slave,  slavery 


Women,  Germanic  regard  for, 
minimised,  196 

Wounding,  penalty  for,  93;  and 
see  crippling,  brawls,  etc. 


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